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$670,000.00 Verdict for Railroad Machinist

This Federal Employer’s Liability Act [“FELA”], 45 U.S.C. § 51 et seq. action instituted by NOPB’s railroad machinist, Joey McLeod, came for trial on May 21, 2012.  Mr. McLeod’s claims arose from an on-duty injury he sustained while working for NOPB on September 24, 2009. 

On that date, Mr. McLeod sustained an injury to his lumbar spine when, following a train derailment in NOPB’s rail yard, NOPB attempted to re-rail several rail cars and a locomotive engine.  During the re-railing process of the westernmost derailed car, the locomotive engine that Mr. McLeod was working underneath began to shift and move on top of him.  As a result, Mr. McLeod dove out from underneath the engine falling to the ground several times and injuring his back.  Subsequently, Mr. McLeod underwent a number of medical procedures to his lumbar spine, including a discogram and intradiscal electro-thermal therapy (IDET).  Based on his lumbar spine injury, Mr. McLeod’s orthopedic surgeon determined that he was permanently unable to return to full-duty as a railroad machinist, a heavy labor job, at NOPB.  Mr. McLeod’s treating physicians did opine that Mr. McLeod could return to light/medium duty work.

A.  The Federal Employer’s Liability Act and Absolute Liability

The Plaintiff’s burden of proof in a FELA action is significantly lighter than it would be in an ordinary negligence case.  In a FELA action, the railroad is liable if its negligence played any part, even the slightest, in producing the injury.  In addition to a negligence cause of action under 45 U.S.C. § 51, FELA also provides for certain causes of action which are not based upon negligence.  These are actions brought under FELA for injuries caused by the railroad’s violation of the Federal Safety Appliance Act.  The Federal Safety Appliance Act does not create a private cause of action, but employees who allege that they have been injured as a result of a safety violation may sue under FELA.

With respect to the Federal Safety Appliance Act, certain railroad equipment must be kept in a certain prescribed condition.  If the equipment is not kept in the prescribed condition and an employee is injured, the employee may bring a cause of action under FELA.  In such cases, proof of the violation of the Federal Safety Appliance Act supplies “the wrongful act necessary to ground liability under the FELA.”  In personal injury claims brought for injuries caused by a violation of the Federal Safety Appliance Act, care on the part of the railroad is, as a general rule, immaterial.  The United States Supreme Court “early swept all issues of negligence out of cases under the Safety Appliance Act.”

B.  FSAA Claim- Defective Coupler


At trial, Mr. McLeod advanced two strict liability theories of recovery.  These theories were based on NOPB’s violations of the Federal Safety Appliance Act [“FSAA”], 49 U.S.C. § 20302, et seq. and another federal regulation known as the Blue Flag Rule, 49 C.F.R. § 218.25.  Mr. McLeod urged at trial that NOPB was absolutely liable under FELA because of its violation of the provisions of the FSAA.  In particular, during the re-railing process, NOPB employee, Edgar Nichols, attempted to uncouple the westernmost derailed car from the rest of the derailment, including the locomotive engine Mr. McLeod was underneath.  When Mr. Nichols attempted to uncouple the derailed car using the pin lever, the lever, pin, and knuckle malfunctioned causing the pin to remain down and prevented the train from uncoupling.  Because of this defective coupler, the locomotive engine on top of Mr. McLeod began to move during the re-railing process causing his career-ending injuries.

C.  Blue Flag Rule

Aside from the FSAA claim, Mr. McLeod contended that NOPB violated federal regulations, specifically, 49 C.F.R. 218.25, entitled “Workers on main track.”  This regulation sets forth the responsibilities that workers must carry out before working on, under, or between rolling equipment.  This regulation states that “when workers are on, under, or between rolling equipment on a main track: (a) A blue signal must be displayed at each end of the rolling equipment.”  Once a blue flag is displayed, the rolling equipment may not be coupled to or moved in any way.

After the derailment on September 24, 2009, NOPB ordered another of its NOPB machinists, Larry Keys, to accompany Joey McLeod to the derailed locomotive to gauge the derailed locomotive’s wheels and download the engine event recorder data.  Upon arriving at the scene, Mr. Keys boarded the derailed locomotive engine and later descended underneath the engine without displaying a blue flag.  

During trial, NOPB argued that Mr. McLeod violated the “blue flag rule” when he failed to display a blue flag before descending under the derailed locomotive.  However, Mr. Keys’ failure to display a blue flag on the end of the derailed train before boarding the derailed locomotive also violated the provisions of the “blue flag rule.”  Had Mr. Keys complied with the blue flag rule, the re-railing process that led to Mr. McLeod’s injury would simply not have occurred because a displayed blue flag at the western end of the train would have signaled to the NOPB work crews carrying out the re-railing process that workers were on, or underneath, the derailed equipment.

I.  The Evidence at Trial

Throughout the trial, the jury heard conflicting testimony on each of Mr. McLeod’s absolute liability claims.  The credibility and testimony of one NOPB official in particular figured prominently in the jury’s determination that NOPB violated the FSAA.  NOPB Safety Director, John McCrossen, admitted under cross-examination that he was present at the derailment scene, and that day he wrote a statement which showed that Edgar Nichols pulled the pin lever on the knuckle, but the knuckle malfunctioned.  The pin lever fell back down, causing the locomotive engine to move on top of Joey McLeod.  Notwithstanding this previous sworn testimony, at trial, Mr. McCrossen completely recanted his story and stated that he had no idea who pulled the pin and did not know whether the coupler malfunctioned or whether the engine moved on top of Mr. McLeod.

In support of the claim that the coupler was indeed defective and failed to uncouple properly during the re-railing process, both Joey McLeod and Larry Keys clearly testified at trial that the locomotive engine moved and rocked back and forth.  The only way the locomotive engine moves is if the westernmost derailed car that NOPB was trying to re-rail failed to uncouple and dragged the locomotive engine.  As such, Mr. McLeod’s and Mr. Keys’ testimony bolstered Mr. McCrossen’s original statement and deposition testimony that the coupler indeed malfunctioned.

With regard to the blue flag rule, federal regulations require that “when workers are on, under, or between rolling equipment on a main track: (a) A blue signal must be displayed at each end of the rolling equipment.”  All NOPB officials that were called to testify at trial on the issue of the blue flag admitted that this rule must be followed by all mechanics at NOPB, including Larry Keys, who had been employed with the company as a mechanic apprentice for almost 3 years before this accident.  Mr. Keys admitted at trial that he was familiar with the rule, but simply did not place a blue flag on the track before he boarded the engine and later descended underneath the engine before Mr. McLeod’s injury.

II.  The Verdict

On May 23, 2012, after a three day trial, the jury returned a unanimous verdict in Mr. McLeod’s favor in the amount of $670,935.00.  The jury, in returning the verdict in Mr. McLeod’s favor, specifically found that NOPB violated the FSAA and the Blue Flag Rule, both of which were legal causes, in whole or in part, of Plaintiff’s damages.  The Court, on May 31, 2012, rendered Final Judgment in favor of the Plaintiff for the full verdict.

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