Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marsh v. Norfolk Southern, Inc.

United States District Court, M.D. Pennsylvania

March 20, 2017

TAMMY MARSH, Administratrix of the Estate of MAHLON CHRISTOPHER MOSHER, Plaintiff,
v.
NORFOLK SOUTHERN, INC., CANADIAN PACIFIC RAILWAY, and JEFFREY D. BOYD, Defendants.

          MEMORANDUM

          A. Richard Caputo United States District Judge.

         Presently before me is a Motion for Summary Judgment (Doc. 47) filed by Defendants Norfolk Southern Railway Company, Canadian Pacific Railway, and Jeffrey D. Boyd (collectively "Defendants"). This case concerns a fatal accident involving a train owned by Defendant Norfolk Southern Railway Company ("NSRC"), and operated by locomotive engineer Defendant Jeffrey D. Boyd ("Boyd"), which struck and killed Mahlon Mosher (“Mosher”), a 16 year-old high school student who was walking alongside railroad tracks, owned by Defendant Canadian Pacific Railway (“CPR”), on December 11, 2012. Because Plaintiff Tammy Marsh (“Plaintiff”), the administratrix of the estate of Mosher, has not established that a genuine issue of material fact exists to support the claim that Defendants acted wantonly, Defendants' motion for summary judgment will be granted.

         I. Factual Background[1]

         This action arises out of an accident that occurred on the morning of December 11, 2012, between a northbound NSRC train operated by locomotive engineer Boyd and Mosher, who was walking to school along the single line railroad track owned by CPR, at approximately mile post 632.8 in New Milford, Pennsylvania.[2] The train's other crew members were conductor Christopher Chesmore (“Chesmore”) and conductor trainee Aaron Willis (“Willis”). The train consisted of three (3) locomotives (NS 6713, NS 9138, and NS 9642), sixteen (16) loaded cars, and twelve (12) empty cars; it was 1, 608 feet long and weighed 2, 571 tons.

         The train left Allentown, Pennsylvania on December 10, 2012, and was destined for Binghamton, New York. As the train traveled north toward Binghamton on the morning of December 11, 2012, the speed limit in the area of the accident was forty (40) miles per hour. As the train came around a set of curves and into a straightaway, the crew observed something ahead along or near the tracks. Boyd described the “something” as a “black blob I guess basically, just something black by the tracks, ” and did not realize at that time that it was a person. Chesmore described seeing “something that's basically like a shadow on the tracks up ahead, ” and, along with Willis, also did not initially realize that it was a pedestrian.

         Willis testified that he said, “What's that?” as the train was in the straightaway, and a few seconds elapsed when he said, “it looks like someone walking along the tracks.” Boyd and Chesmore acknowledged there was “something” up ahead and, at that time, Boyd began blowing the horn.

         According to the Railview video from the second locomotive in the train, Boyd began blowing the horn at 08:09:23 on the video, and continued blowing it for approximately sixteen (16) seconds until 08:09:39. Boyd initially testified that he was approximately eight (8) seconds into blowing the horn when he realized that “the blob” was a person. Later, Boyd testified that he did not know exactly at what point he recognized “the blob” as being a pedestrian, but, during the time the person came into focus, Boyd never stopped sounding the horn.

         Boyd did not engage the emergency brakes at that time because, as he testified, he thought the person was going to get out of the way. Even when Boyd was 7 to 9 seconds into blowing the horn, Boyd testified that he still thought the pedestrian was going to vacate the tracks. At 8:09:39 on the Railview video, after continuously blowing the horn for approximately 16 seconds, Boyd stopped blowing the horn to engage the emergency brakes. It was apparently at that point when Boyd realized that the person was not going to step out of the train's path.

         In the early part of his deposition, Boyd was asked to describe the accident and testified as follows:

Early in the morning going north going into Binghamton coming around a --two sets of corners [curves] and seeing something on -- you know, near the tracks, not sure exactly where it was at at the point as far as where we're at; come around the corner and blew the horn and, as we got closer, it turned out to be an individual instead of an animal or an object or a tree or a bush or whatever it may have been at the time that we first seen the object. At that point, I stayed on the horn; and when I seen that he was not going to move and immediate danger, I put the train in emergency.

         Boyd stopped blowing the horn at 8:09:39 because he needed to use his left hand, which was operating the horn, to place the train into emergency. He then went back to blowing the horn with his right hand. It is undisputed that after the horn stopped blowing at 8:09:39 on the Railview video, the horn started to blow again at 8:09:42, and emergency brakes were engaged at 8:09:43. Boyd believes that the train's emergency brakes were engaged just before the pedestrian was struck.

         NSRC Road Foreman Philip Koerner (“Koerner”) was present after the accident. He was unable to download the event recorder data from the lead locomotive, NS 6713, but was able to download the event recorder data from the second locomotive, NS 9138. Based on the data, it is undisputed that the train was in emergency mode at 8:04:32 when the automatic brake pipe pressure (“ABK psi”) was at 57. It is also undisputed that Boyd made a first service application of the brakes at least 4 seconds prior to the emergency application of the brakes.

         When the train's emergency brakes were engaged at 8:04:32, the train was traveling at a speed of 39 miles per hour. Moreover, according to the event recorder data for NS 9138, in the two minutes leading up to the accident, the train's speed did not exceed 40 miles per hour, except for a period of approximately six seconds from 8:04:21 to 8:04:26. During that time, Boyd was already in “dynamic braking” (which is different from emergency braking), and increasing it. Koerner explained that the increase in dynamic braking could cause the “slack of the train to come in” and give “a little boot from behind” that could cause speed to increase, which is confirmed by the Railview video, showing that the speed of the train slightly increased.

         After the train struck the pedestrian, who never turned around to see the approaching locomotive, Boyd called dispatch and requested medical personnel, and the dispatcher called 9-1-1. The pedestrian was later identified as Mosher, who sustained fatal injuries due to blunt force trauma to the head.

         Pennsylvania State Police Trooper John Oliver (“Oliver”) investigated the accident. He noted the presence of ear buds and an iPod at the scene, which, according to Oliver, appeared to be part of Mosher's personal belongings. Oliver concluded that Mosher may have been wearing headphones and listening to music at the time of the accident. There is no evidence in the record, however, that the train crew at any time became aware that Mosher may have been wearing headphones and/or listening to music and might not hear the approaching train.

         No criminal charges were brought against the members of the train crew. None of the crew members were disciplined by NSRC in connection with the accident.

         On December 8, 2014, Plaintiff Tammy Marsh filed a wrongful death and survival action Complaint in this Court alleging claims of negligence against Defendants, and sought punitive damages. (Doc. 1). Plaintiff thereafter filed an Amended Complaint on December 17, 2014. (Doc. 6).

         The Amended Complaint contains the following claims: (1) Count I alleging that the death of Mosher was the direct and proximate result of the negligence, carelessness and recklessness of NSRC, by and through its employees, agents, servants and/or workmen, in the following respects:

(a) Norfolk Southern breached its duty of care and was negligent, grossly negligent and reckless in causing Plaintiff's Decedent's death in that the train was traveling at a speed greater than that which was reasonable and prudent under the circumstances;
(b) Norfolk Southern breached its duty of care and was negligent, careless and reckless in causing Plaintiff's Decedent's death in that its train was traveling at a speed greater than that permitted under the applicable laws and regulations, in particular the Federal Railroad Safety Act, 49 U.S.C. § 20106, et seq., and such excessive speed caused Plaintiff's Decedent to be struck by the train;
(c) Norfolk Southern breached its duty to ensure its trains were operated in conformity with federal regulations, pursuant to the Federal Railroad Safety Act, 49 U.S.C. § 20106, et seq., and in a safe manner;
(d) Norfolk Southern breached its duty of care and was negligent, careless and reckless in that it knew or should have known of the potential for pedestrians walking alongside and/or on the tracks, but failed to require its employees to operate its train at a reasonable and prudent speed, and to require its employees to adequately slow or stop the train so pedestrians, including Plaintiff's Decedent, could avoid injury and/or death;
(e) Norfolk Southern failed to properly warn the Plaintiff's Decedent that a train was approaching on the tracks on which he was killed when Norfolk Southern's train struck and killed him;
(f) Norfolk Southern negligently maintained the train, engine and snow plow involved in this incident, in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20106, et seq.;
(g) Norfolk Southern operated its train through its employees, agents and/or workmen, and is therefore vicariously liable for the negligent, careless and reckless actions of its employees, including Defendant, Jeffrey D. Boyd, in failing to safely operate the train;
(h) Norfolk Southern acted negligently, carelessly and recklessly in failing to properly train, supervise and/or instruct the train crew, including the engineer, on stopping or slowing a train when the train crew is confronted with a pedestrian adjacent to and/or on the train tracks upon which the train is proceeding;
(i) Norfolk Southern acted negligently, carelessly and recklessly when its employees, at the first sight of Plaintiff's Decedent on the train tracks, failed to take reasonable steps to avoid striking and fatally injuring the Plaintiff's Decedent;
(j) Norfolk Southern acted negligently, carelessly and recklessly when it operated its train in excess of the maximum allowable operating speed for freight trains on the Class track located in New Milford, in violation of 49 C.F.R. § 213.9;
(k) Norfolk Southern acted negligently, carelessly and recklessly when it failed to ensure the train's braking system was compliant with federal regulations pursuant to 49 C.F.R. § 229.47, et seq.;
(1) Norfolk Southern acted negligently, carelessly and recklessly when it failed to ensure that the train's locomotive horn produced a minimum sound level of 96 dB(a) at 100 feet forward of the locomotive in its direction of travel, pursuant to 49 C.F.R. § 229.129;
(m) Norfolk Southern knew or should have known of the potential for pedestrians walking alongside and/or upon the tracks, and in this specific instances had actual knowledge of Plaintiff's Decedent's presence on the tracks prior to his fatal injuries;
(n) Norfolk Southern's actual and constructive knowledge of the Plaintiff's Decedent's presence alongside and/or upon the tracks before the train collided with his person came at a sufficient time before the collision to allow Nortfolk Southern to reasonably avoid or prevent the fatal collision; and,
(o) Norfolk Southern substantially contributed to cause and proximately caused the fatal injuries to Plaintiff's Decedent by operating, through its agents and employees, the train in a negligent, careless and reckless manner in violation of Norfolk Southern's internal rules governing the operation of trains, and in violation of various federal regulations.

(Doc. 6, at 8-10); Count (2) alleging that Boyd, operated the train negligently, carelessly and recklessly in violation of federal and state regulations, thereby causing the fatal injuries Mosher, by, inter alia, failing to apply brakes and take other preventive action to slow down the train at the first sight of Mosher alongside and/or on the railroad tracks, and failing to apply brakes and take other preventive action to slow down the train, which substantially contributed to cause and proximately caused Mosher's fatal injuries; Count (3) alleging that the death of Mosher was the direct and proximate result of the negligence, carelessness and recklessness of CPR in that, as the owner of the tracks, CPR, inter alia, failed to warn pedestrians and minors that the area was a private property and that it was unsafe for walking upon, and failed to police or post the tracks and surrounding property; Count (4) bringing an action for wrongful death pursuant to 42 Pa. C.S.A. § 8301; and Count (5) bringing a survival action under Pennsylvania common law.

         On May 26, 2016, Defendants filed the instant Motion for Summary Judgment (Doc. 47). Oral argument on the motion was heard on November 30, 2016. The motion has been fully briefed and is now ripe for disposition.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.