Harper v. Norfolk S. Ry. Co.

Citation992 F.Supp.2d 795
Decision Date31 January 2014
Docket NumberCase No. 2:12–CV–00049.
PartiesJames W. HARPER, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

992 F.Supp.2d 795

James W. HARPER, Plaintiff,

Case No. 2:12–CV–00049.

United States District Court,
S.D. Ohio,
Eastern Division.

Jan. 13, 2014.
Order Denying Reconsideration Jan. 31, 2014.

[992 F.Supp.2d 797]

Robert Bruce Thompson, Laurence C. Acker, Harrington, Thompson, Acker & Harrington Ltd., Chicago, IL, for Plaintiff.

R. Leland Evans, Dickie McCamey & Chilcote, Columbus, OH, for Defendant.


EDMUND A. SARGUS, JR., District Judge.

Plaintiff, James W. Harper, brings this action against Defendant, Norfolk Southern Railway Company, pursuant to the

[992 F.Supp.2d 798]

Federal Employers' Liability Act (“FELA”). 45 U.S.C. §§ 51–60. He alleges that he sustained personal injuries as a result of Defendant's negligence in violation of the Code of Federal Regulations. This matter is now before the Court for consideration of Plaintiffs motion for partial summary judgment as to his claim under 49 C.F.R. § 218.103. Doc. 69. For the reasons below, the Court GRANTS Plaintiff's motion.


Plaintiff has worked for Defendant, a railway company, since July of 1999. Doc. 70–1 at 15. He started as a conductor and then earned a promotion to engineer in 2006. Id. at 15–16. Engineers work with conductors and utility brakemen to transport train cars to and from designated railroad-yard depots. See id. at 17–18; id. at 36–37.

Plaintiff was working as an engineer when he reported to work on August 18, 2010. Id. at 38. He worked third shift, showing up to work at 10:00 p.m. See id. Harper worked what the parties call the “L–65” job—taking cars back and forth between Defendant's Moraine Yard and Reed Yard. Id. at 17; id. at 38. His crew that night had two additional members: Joseph Capozzolo (“Capozzolo”) as the conductor and David Schreiber (“Schreiber”) as the utility brakeman. Id. at 36. The crew received a short set of instructions for the job that night and then travelled toward Reed Yard, see id. at 39, 14 miles from Moraine, id. at 41. Upon pulling into Reed, the crew was directed down track 24. See, e.g., id. at 45–46. Plaintiff and his crew ran into a problem as they pulled into track 24: not all of their cars fit.

Reed's yardmaster directed the crew to place the remainder of the cars into track 25. Id. at 46. The crew had to take several steps to do so. First, the crew made a “cut”—a separation between the cars that fit in track 24, and the rest of the cars that needed to be funneled onto track 25 (Plaintiff testified in his deposition that he did not know how many cars remained attached to his car after the cut, although he learned after the incident that the number was eight, see doc. 70–1 at 53); step one happened without incident. See id. at 46–50. Second, the crew and its remaining cars had to be funneled onto a holding track, what the parties call a “lead” track; step two also happened without incident. See id. at 50.

The third step involved the conductor, Capozzolo, hitting the proper switches to direct the cars onto the proper track. Switch alignment is important enough that Defendants have two rules to minimize risk. One rule, known as “NS Operating Rule 104,” reads in relevant part:

The position of a switch or derail being used is the responsibility of the employee handling it. This does not relieve other crew members of responsibility if they are in place to observe the positions of switches and derails.

Employees operating switches by hand must ensure:

• switches are properly lined for the movement to be made

• switch points fit up properly

• each switch is secured by placing lock or hoop in hasp, if equipped

Switches and derails must be properly lined and secured after having been used.

Doc. 70–7 at 1.1 The other rule mandates a crew double check whether the switches

[992 F.Supp.2d 799]

have been properly aligned. Known as “LA–509” or a “double check,” the rule reads as follows:

When using radio communication to make noncontinuous switching moves, shove moves, setouts, pickups or couplings: After switches and derails connected with movement are properly lined, the employee directing the move will communicate this information to the Engineer. The Engineer will acknowledge the information and advise the employee directing movement to double-check the alignment of the switches and/or derails. Until notified again that the switches and derails are properly lined, the Engineer must not make a movement. Additionally, the Engineer must not move until he is given a direction of move and distance seen or known to be clear.
Doc. 70–8; see also doc. 70–1 at 61(Plaintiff verifying that the double check as “part of the Lake Division rules that you have to abide by when working the Lake Division”).

Plaintiff testified several times at his deposition that he initiated a double check, see, e.g., doc. 70–1 at 59–60, and that Capozzolo responded by giving him “the green light” to move onto track 25, id. at 59. Capozzolo testified that Plaintiff did not initiate a double check. Doc. 70–3 at 34. Also, Capozzolo was asked in his deposition whether he properly aligned—and ensured that he aligned—the track 24 switch back to the lead. This led to the following exchange:

Q. First of all, tell me why you don't look at banners.

A. I'll tell you why, because I've seen banners that guys have messed around with and taken them off and changed them around.

Q. Okay. Well, that may be why you're supposed to look at the points, correct?

A. Oh, absolutely.

Q. But you didn't do that either?

A. Apparently, I did not.

Q. Okay. The—you say, apparently, I did not because I take it you mean that if you had, you would have not brought them back?

A. Absolutely.

Q. Okay.

A. We wouldn't be sitting here. I wouldn't have been disciplined, and we wouldn't be sitting here.


Q. Okay. And I—

A. What I'm saying is 1 walk the lead. I don't—I don't assume anything. I walk the leads. I make sure everything is—I make sure I have a lineup before I even make a movement.

Q. Okay. I understand what you're saying, Joe.

A. Sure.

[992 F.Supp.2d 800]

Q. And, obviously, you said we wouldn't be here today if you had checked that lineup.

A. I did.

Doc. 70–3 at 38–10.

Thinking the coast was clear, Capozzolo “gave the okay to start” the movement—known as “the shove”—onto track 25. Id. at 59. NS Operating Rule 509 governs employee conduct with respect to shove movements. It reads, in relevant part:

(b) The distance of the movement must be specified in 50 foot “car lengths” and the movement must stop in one-half the distance last received unless additional instructions are received.

EXCEPTION: When within five car lengths of the coupling or stop, the person directing the move will call out distances in car lengths:

• “five cars”

• “four cars”

• “three cars,” etc.

After acknowledging “five cars,” the Engineer will not be required to further acknowledge countdown if so doing would interference with safe operating. During this countdown, the Engineer will stop the move immediately after moving one car length unless receiving additional signals from the person directing the move.

Doc. 70–2 at 1–2. As Plaintiff told it in his deposition, Capozzolo gave the indication that he was clear to move five train-car lengths toward track 25. Doc. 70–1 at 60. Plaintiff further testified that he “started moving, and then [Capozzolo] was like—I don't know if he was walking or what, he said, I'll give you clear for another ten, so he went from five cars to ten cars.” Id. Capozzolo in his deposition confirmed the accuracy of a written statement he gave two days after the accident. See doc. 70–3 at 14. In that written statement, Capozzolo wrote that he told Plaintiff he was “lined for the # 25 [track],” and to “start back 5 cars or maybe 10.” Doc. 70–4 at 1; see doc. 70–3 at 42 (Capozzolo deposition) (recalling that he told Plaintiff to start shoving “back five or ten cars into Track 25”). Capozzolo then wrote that the “utility brakeman,” Schreiber, told Plaintiff that they “should be good for at least 10 cars.” Doc. 70–4 at 2.

Unlike the first two steps, step three did not go off without a hitch. The crew intended for Capozzolo to direct Plaintiff and his attached cars onto the lead track and then, once all there, onto track 25. See id. at 54. Capozzolo thought he aligned the 25 switch properly. Doc. 70–3 at 34. Although Capozzolo thought the switches would funnel Plaintiff and his attached train cars onto track 25, they did not. The switch was still aligned to track 24, meaning Plaintiff unexpectedly shoved the attached cars back into the detached cars. Doc. 70–3 at 44. The impact knocked Plaintiff out of his seat. Doc. 70–1 at 67–68. As a result, Plaintiff sustained injuries to his neck and shoulder. The documents submitted by the parties do not indicate a specific neck-injury diagnosis, only that Plaintiff continued to experience pain after the accident. See, e.g., id. at 107–12. Plaintiff sustained a separated shoulder, which later required surgery. See id. at 92; id. at 99.

The involved parties filed post-incident reports. For his part, Plaintiff filled out a personal injury report the day after the accident. It reads in its entirety:

Working L–65[.] Heading into Reed Yard [and] went up [t]hrough 24 track [.] There was an overflow of 8 cars? ? They were to go in 25 Track [.] Pulled up[.] Conductor said come on back for 25[,] clear[,] no cars [.] Stated shoving back[,] moved 4 to 5 cars and slammed into cars [t]hat were [i]n 24[.] Was

[992 F.Supp.2d 801]

t]hrown [f]rom seat[.] Not [r]eal sure what I [h]it.

Doc. 73–1. On August 21, 2010, Conductor Capozzolo submitted his own written statement, in relevant part:

Came in for Track # 24, with excess cars to Track # 25.8 cars overflow to Track # 25, brakes at the west end, made cut, proceeded to switch at east end. Track # 24, had lined Track # 25, for our move. Apparently did not line # 24 Track back to lead. Do not remember double check, said lined for Track # 25 clear to...

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