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$3.5 MILLION FOR RAILROAD "TRESPASSER"

How do you get sufficient damages for an industrial worker who leaves his work station, borrows his employer's front-end loader, parks it across a railroad track at 2:00 A.M., dismounts to load the bucket with railroad ties for his own personal use, and fails to notice an oncoming train?

The short answer: freely admit a degree of negligence, emphasize the long-term economic impact of the devastating injuries, and conduct extensive research to uncover the railroad's negligence.

After being hit by the train, our client that we will call John incurred more than $1.2 million in medical bills while spending a year in the hospital. He was fitted with a prosthetic leg, a colostomy bag, and a hearing aid. Despite an extensive period of rehabilitation, doctors forecast that John would no longer be able to work. Evaluations and appraisals by various specialists allowed attorney Dean Brett to determine that damages ran potentially into tens of millions of dollars, enough to get the Defendant's attention if a coherent theory of liability could be presented.

The majority of attorney effort was focused on demonstrating that John’s one-time judgment error paled in comparison to the profit-driven, corporate irresponsibility of WATCO, eventually demonstrated to be "the renegade railroad."

John was hand-loading railroad ties into the bucket of a front-end loader on a switching yard track at his Boise Cascade workplace when a railroad engine driven by two employees of the local switching contractor WATCO, rounded a bend in the track, headed for the rear of the loader. The train crew saw an object on the track when the engine was at least 260 feet and 18 seconds away from the loader. The WATCO employees did not blow the engine's horn or stop the engine before it crashed into the front-end loader, pushing it over John.

Boise Cascade operates a paper mill along the Columbia River, where John worked as a power recovery assistant. He was also trained and authorized to operate a front-end loader. In the fall of 1994, he began building a fence on 10 acres of property he owned near Tri Cities. He contacted Union Pacific about abandoned railroad ties that had been thrown over the embankment next to the railroad line.

On December 3, John told his foreman that during a slow part of his shift he was going to use the front-end loader to collect and stack a load of those abandoned railroad ties. The foreman later denied that the conversation took place or that Plaintiff ever talked to him about railroad ties. However, another Boise Cascade employee overheard the foreman and John talking about railroad ties. After the conversation with John, the foreman continued his rounds, stopping at another work site where he told two other employees that if they needed the front-end loader that evening, they should call John on the radio because he would be using the loader. Thus, whether John's foreman gave permission for him to use the front-end loader to collect abandoned railroad ties during his shift on Boise Cascade property or whether he was a trespasser was a hotly disputed issue.

During a lull in his work, John called the WATCO terminal to see if they were finished switching for the evening. He got a recording. He then got in the front-end loader and traveled throughout the Boise Cascade mill to the eight locations where switching occurs to make sure first-hand that WATCO had finished switching for the evening. Although in-plant switching had been completed, WATCO employees had decided to move some cars from the Union Pacific yard at the south of the Boise Cascade mill to the Burlington Northern yard at the north of the Boise Cascade mill.

In the early morning hours of December 3, 1994, a single WATCO locomotive was traveling north, in reverse, on a Boise Cascade switch track. Between the beginning and the middle of the radius of the curve, the brakeman saw something on the track ahead. Immediately, when he saw something, he yelled "Oh, shit, something's on the rail, hit the brakes!" and the engineer "slapped" the independent brake into full operation. The engine struck the front-end loader, driving it into John who was loading railroad ties into the bucket of the loader.

The crewmen estimated their speed at between 5 and 10 miles per hour. The engineer failed to blow the horn, failed to engage the warning bell, and failed to engage the brake sanders. He hit the independent brakes rather than the emergency brakes, which would have automatically engaged the brake sanders.

Attorney Dean Brett hired an illumination expert to conduct tests at the site, who concluded that the front-end loader was "plainly visible to the engineer of the railroad engine from several hundred feet away at night. The tractor was plainly capable of being seen, even at a glance." A railroad engineer conducted stopping tests at the site using a similar WATCO engine. At 10 miles an hour, the engineer was able to stop the engine in all instances between 57 feet and 89 feet 10 inches, and between 6.09 and 8.9 seconds. After recreating conditions on the site at the time of the accident, an expert audiologist concluded that "had the horn been sounded . . . . alerting would have occurred when the locomotive was more than 200 feet from the point of impact."

WATCO management ultimately admitted that the horn should have been sounded to warn John of the impending collision. And the engineer himself admitted that John would have heard the horn. Even the WATCO Location Manager agreed that John would have "definitely" heard the horn had it been blown.

Using these deposition admissions and expert opinions, Dean Brett argued that, even assuming the worst possible case that John was a trespasser at the time of the accident - WATCO nevertheless owed him a duty of reasonable care once the train crew saw an object indicating the substantial chance of a trespasser on the track. Once a reasonable care standard was established, an aggressive discovery campaign demonstrated that WATCO fell woefully short of meeting the standard.

WATCO's training did not meet the standard of reasonable care. WATCO provided no classroom training to the switchmen who operated their locomotives. WATCO provided only on-the-job training that followed no standard format and did not even include an informal list of items to cover. The "engineer" who was operating the engine when it struck John was given only three days of on-the-job training before he was allowed to operate the 238,000 pound locomotive solo. The on-the-job training was provided primarily by an Assistant Location Manager who was not an FRA certified engineer. In the year prior to teaching employees how to operate a locomotive, he was reprimanded for speeding in the Boise Cascade mill. Shortly after completing their on-the-job training, he was terminated for failing a drug test. Following the collision, the engineer quit rather than submit to a drug test. Six months later, he re-applied for work at WATCO, was given a pre-employment drug test, and failed it.

WATCO's maintenance program did not meet the standard of reasonable care. WATCO's Location Manager was the person in charge of maintaining the locomotives, but prior to his job at WATCO, he had no experience repairing locomotives. In order to keep materials flowing to Boise Cascade, WATCO used locomotives which had known defects. In the year prior to the collision, the two locomotives used by WATCO developed numerous problems: a warning bell that worked only occasionally; brake sanders that worked only occasionally; malfunctioning headlights; inadequate motive power; inoperable speedometer; broken engine compartment heater; partially inoperable brakes. At the time of the collision with John, the engine was operating without a functioning speedometer and without functioning brake sanders. WATCO is unsure whether the warning bell was operating on the night of the collision, since the crew did not engage the warning bell.

WATCO laid the ground work for this accident through a systematic course of irresponsible conduct, and then its untrained employees had the last opportunity to prevent the tragic accident by simply blowing the train's warning horn.

The case was filed in U.S. District Court for the Eastern District of Washington as CS-97-0105 JLQ. The case settled for $3.5 million before mediator David A. Thorner.

Plaintiff was represented by Dean Brett of Brett & Coats LLP, Bellingham, and Timothy W. Mahoney, Kennewick.

Call the attorneys at Brett & Coats today at 1-800-925-1875, 360-714-0900, or contact us via our online form.

For more information on serious personal injury claims, please see our auto accident page.