Gaston v. Norfolk S. Ry. Co., Case No: 2:17-cv-1151
| Decision Date | 18 September 2020 |
| Docket Number | Case No: 2:17-cv-1151 |
| Citation | 488 F.Supp.3d 592 |
| Parties | Michael GASTON, Plaintiff, v. NORFOLK SOUTHERN RAILWAY CO., et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Samuel J. Rosenthal, Pro Hac Vice, Philadelphia, PA, Stephen Joseph Schuh, Schuh & Goldberg - 1, Cincinnati, OH, for Plaintiff.
R. Leland Evans, Dickie McCamey & Chilcote, Columbus, OH, for Defendant Norfolk Southern Railway Company.
C. Joseph McCullough, White Getgey & Meyer, Mason, OH, for Defendant Alexandra B. Wallman.
JAMES L. GRAHAM, United States District Judge Plaintiff Michael Gaston, a train conductor for defendant Norfolk Southern Railway Company, stood on the exterior steps of a slow-moving locomotive when it was struck by a motor vehicle traveling about 30 miles per hour. The car, driven by defendant Alexandra Wallman, did not directly hit Gaston but missed him by no more than a few feet. Gaston alleges that he suffered injuries to his back and leg as a result of the impact of the accident.
Plaintiff brings this action against Norfolk Southern under the Federal Employers Liability Act, 45 U.S.C. § 51, et seq. He alleges that his employer acted negligently by instructing him to stand on the exterior steps of a locomotive moving through a railway-roadway grade crossing. He further alleges that the train's engineer failed to sound the horn for the required period of 15 seconds before the locomotive entered the crossing. Finally, plaintiff alleges that the railroad was negligent in failing to instruct Gaston to activate the flashing red crossing lights at least 20 seconds before the locomotive entered the crossing.
This matter is before the court on Norfolk Southern's motion for summary judgment. For the reasons set forth below, the motion is denied in part and granted in part.
Michael Gaston is a resident of Weirton, West Virginia. Gaston Dep. at 6. He is 47 years old and began working for Norfolk Southern in 2007. Id. at 5, 12. He worked primarily out of a Norfolk Southern facility in Mingo Junction, a town in eastern Ohio along the Ohio River. Id. at 16, 20. Gaston was initially employed as a conductor trainee and later became a conductor. Id. at 16. As a conductor, he was in charge of the overall operation of the train to which he was assigned. Reilly Dep. at 37-38. By contrast, an engineer's job is to operate the locomotive or engine. Id.
The accident in question occurred on February 6, 2016 at 12:20 a.m. in Martins Ferry, Ohio. Gaston began his shift at about 5:00 p.m. on February 5. Gaston Dep. at 34. He was assigned to Train C19C505, with engineer Mark Czup as the only other crew member. Id. at 33-34. Gaston and Czup departed Mingo Junction on locomotive NS 3313 to deliver rail cars to businesses along a railroad line heading south along the Ohio River. Id. at 35-36.
They reached the area of a Nickles Bakery facility in Martins Ferry with one or two rail cars attached to the train. Id. at 44. The main railroad line runs along the east side of State Route 7. West Dep. at 29. A spur track crosses Route 7 to the Nickles plant. Gaston Dep. at 46.
State Route 7 is a four-lane divided highway, with two lanes running in each direction. Id. ; Doc. 98 at PAGEID 1252 A concrete median barrier divides the highway, with a gap in the barrier where the railroad track crosses Route 7.1 Doc. 86 at PAGEID 766; Doc. 90 at PAGEID 938.
The crossing where the spur line to the Nickles Bakery intersects with Route 7 is not perpendicular. Rather, if one pictures Route 7 as running north/south, the spur line crosses at about a 45° angle, running northwest/southeast. Doc. 86 at PAGEID 766; Doc. 98 at PAGEID 1252, 1264.
The crossing did not have gates. It did have other traditional warning devices. Doc. 90 at PAGEID 938-39. In each direction of traffic, round yellow railroad crossing signs are posted in advance of the crossing to the right side of the road. Id. at PAGEID 939. There are also pavement markings in the lanes, including solid white lines across the lanes and "RR" and "X" markings. Id. at PAGEID 938-39. Several sets of flashing red lights are placed at the crossing as well. Each direction of traffic has a pair of lights to the right side of the road on a vertical metal pole, to which is also attached a white X-shaped sign with the words "RAILROAD CROSSING." Id. at PAGEID 938. Extending horizontally from the pole, well above the roadway, is a cantilever with two more pairs of lights, one for each lane of traffic. Id.
Gaston and Czup crossed Route 7 from the main line to the Nickles plant without incident. Both men had worked with each other before at the crossing. Gaston Dep. at 20-21; Czup Dep. at 8-10; see also Gaston Dep. at 107 (). Czup stopped the train on the main line, and Gaston dismounted and threw a switch on the track so they could access the spur. Gaston Dep. at 41, 45. Gaston placed flare lights on the leading end and sides of the rail cars because the cars lacked their own lights and because the locomotive was last in line and was "shoving" (as opposed to pulling) the cars across the road to the Nickles plant. Id. at 50-51. Gaston then checked for vehicular traffic and walked across Route 7. Id. at 54-55. It was typical for Gaston to walk across Route 7 when they were crossing from the main line over to the Nickles plant. Id. at 54-55, 191.
After he crossed Route 7, Gaston removed a derail, which was a device on the track that prevented rail cars on the Nickles side from rolling down the track into the roadway. Id. at 56-57; Reilly Dep. at 46-47. Next he unlocked a control box containing two buttons which operated the flashing red crossing lights.2 Gaston Dep. at 53-54, 57. Gaston could not see the lanes of traffic on Route 7 from the box because it was located a little bit off the road and amidst some "old weeds." Id. at 57; Doc. 86 at PAGEID 782, 784. So Gaston made it a practice to "stick [his] head out to make sure nothing was coming" in terms of traffic on Route 7. Gaston Dep. at 57-58. He returned to the box, turned on the crossing lights and radioed to Czup, "Okay back." Id. Czup proceeded to operate the train in a northwesterly direction across Route 7 towards the Nickles plant. Id. at 58. This process which Gaston and Czup performed that night was typical for how Gaston conducted a "shove move" at the Nickles crossing. Id. at 51, 55.
Once the train was on Nickles side, Gaston turned the crossing lights off. Id. at 63. They dropped the rail cars off at the Nickles plant, which took about ten minutes. Id. at 63-64. They left with no rail cars, so it was only the locomotive leaving the Nickles plant. Id. at 63-65, 84.
The locomotive was positioned such that the "short hood" or nose would be leading across Route 7. Id. at 64. Doc. 90 at PAGEID 937. The locomotive, marked as engine NS 3313, was about 71 feet long, 11 feet wide and 17 feet high. Byrnes Dep. at 40. With the short hood facing forward, there was a relatively small, exterior metal platform at the front of the locomotive. Doc. 86 at PAGEID 727-29; Doc. 90 at PAGEID 937. The platform had handrails in the front and a short series of built-in metal steps with handrails leading down from the platform to the ground on each side of the locomotive. Doc. 86 at PAGEID 727-29; Doc. 90 at PAGEID 937. The platform was at about the height or a little higher than the roof of a standard passenger car. Doc. 90 at PAGEID 937. The exterior side steps dropped down to just above ground level. Doc. 86 at PAGEID 727-29; Doc. 98 at PAGEID 1272. Directly behind the platform was the cab, inside of which the engineer operated the locomotive. Id. ; Doc. 90 at PAGEID 937.
The responsibility fell on Czup to check that the locomotive's headlights, ditch lights and horn all worked properly. Gaston Dep. at 65-66. Even so, Gaston had independently observed during his shift that night that these safety devices were operating properly. Id. at 66-67. The headlights were on the top front of the cab, while the ditch lights were at the platform level. Doc. 86 at PAGEID 727-29; Doc. 90 at PAGEID 937; Gaston Dep. at 93. According to Czup, the locomotive also had a bell that was activated, although there is no further testimony or discussion in the parties’ briefs about the bell. Czup Dep. at 26; Doc. 88 at PAGEID 866 ().
As they left the Nickles plant, Gaston instructed Czup to pull the locomotive slightly past the spot on the track where the derail was to be placed. Gaston Dep. at 65. This put the front end of the locomotive very close to the western edge of Route 7. Id. (). With the locomotive so positioned, the exterior steps on the south side of the locomotive were about 3 or 4 feet from the control box for the crossing lights. Id. at 67-68. Gaston reapplied the derail and walked to the front of the locomotive to look for traffic on Route 7. Id. at 67-68, 81. Gaston described it as follows:
I walked down past the front of the locomotive, looked north, looked south, didn't see anything out of the ordinary. I'm not saying there wasn't maybe a car coming south or something like that, just maybe a straggler, but there was no fire trucks, ambulances. Those are the kind of things I look for mainly.
Id. at 81. Gaston then walked to the control panel and activated the crossing lights. Id. at 73.
According to Gaston, Norfolk Southern had instructed him in the past that he should be aboard the locomotive's exterior side steps while performing the northwest-to-southeast crossing move from the Nickles plant back to the main line. The instruction came "about a year or so" before the February 6, 2016 accident, on a night where Gaston was at the Nickles/Route 7 crossing and decided to...
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