Marsh v. Norfolk S., Inc.
| Decision Date | 20 March 2017 |
| Docket Number | CIVIL ACTION NO. 3:14–CV–02331 |
| Citation | 243 F.Supp.3d 557 |
| Parties | Tammy MARSH, Administratrix of the Estate of Mahlon Christopher Mosher, Plaintiff, v. NORFOLK SOUTHERN, INC., Canadian Pacific Railway, and Jeffrey D. Boyd, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Jamie J. Anzalone, Kelly M. Ciravolo, Anzalone Law Offices, Wilkes–Barre, PA, for Plaintiff.
J. Lawson Johnston, Scott D. Clements, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for Defendants.
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.
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 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:
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