United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WILHOIT. JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Defendant Norfolk Southern
Railway Company's Motion for Partial Summary Judgment
Seeking Dismissal of Plaintiff s Claims under the Locomotive
Inspection Act, 49 U.S. C.§ 20701 and claims asserting
alleged violations of the federal regulations codified at 49
CFR § 229.45 and 49 CFR § 229.119(c). [Docket No.
39]. The matter has been fully briefed by the parties [Docket
Nos. 39-1, 40, 43, 66, and 68]. For the reasons stated
herein, the Court finds that Plaintiff Michael Coleman has
not come forward with any credible evidence creating a
genuine issue of material fact that locomotive NS 6729 was in
use on the Railroad's line of road at the time of his
alleged slip on an exterior walkway of the locomotive on
January 22, 2014 and has provided no admissible evidence
creating a genuine issue of material fact to support his
contention that NSRC violated the provisions of the Federal
Locomotive Inspection Act, 49 U.S.C. § 20701, or the
federal regulations codified at 49 CFR § 229.45 and 49
CFR § 229.119(c). Therefore, the Plaintiffs claims
against NSRC under the Locomotive Inspection Act and the
provisions of the federal regulations promulgated at 49 CFR
§ 229.45 and 49 CFR § 229.119 (c) which are set
forth in Paragraphs 17 (j) -17 (n) of Plaintiff s Complaint
will be dismissed as a matter of law.
case arises from injuries sustained by Plaintiff Michael
Coleman on January 22, 2014 during his employment as a
locomotive engineer with Defendant Norfolk Southern Railway
night before, on January 21, 2014, Plaintiff was called to
report to work to Williamson Yard, West Virginia at 10:15
p.m. [Docket No. 40-5, Deposition of Michael Coleman at p.
171]. His assignment that day was to be transported the NSRC
siding at Burke, Kentucky and to move Train8lK from Burke to
the Defendant's yard in Bluefield, West Virginia.
trip from Williamson Yard to Burke, Kentucky is a 30 mile
trip and crews are normally transported there by taxi cab.
Id. at 189. However, on the evening of January 21,
2014, due to snowy and icy roadway conditions throughout the
area, the use of taxi vehicles an engine, a J25 pusher unit,
transported Plaintiff and Derek Erwin, a conductor, to the
Burke Siding. Id. at 189. The pusher unit consisted
of two light locomotives and was operated by Dwayne Moon.
to the departure from Williamson Yard, Plaintiff and Moon
requested that the J25 locomotive be cleared of ice and snow.
Id. at 194, 195, 196. These tasks were subsequently
performed by mechanical department roundhouse personnel.
this time, Plaintiff had a safety briefing with Trainmaster
Finlen in Williamson Yard. Id. at 180. Plaintiff
testified that "[w]e talked about the winter, you know,
how it's cold outside and slick, and, you know, how snow
is going to be an issue, watch your walkways and stuff. I
asked them could they get somebody over there (Burke Siding)
to clean the walkways off and he said no, you've got
winter footwear, just to be careful and just don't - you
know, don't fall, do your exercises, and just be -be
careful." Id. at 182, 183. Further, Plaintiff
testified that "we knowed it was snow covered" and
"everything within 50 miles of Williamson was like
about an hour and a half for the pusher engine unit to
transport Plaintiff and Erwin from Williamson Yard to Burke,
Kentucky. Plaintiff arrived at the Burke Siding sometime
between 3:00 a.m. and 3:30 a.m on the morning of January 22,
2014. Id. at 236.
testified that when they arrived, he and Erwin dismounted to
walk from the mainline track over to the lead locomotive of
the 8 IK located on the siding track. Id. at 244.
addition to 99 coal cars there were three locomotives in the
81K, two were running and the third locomotive was "dead
in tow, " which means it was not operating at all, and
was being towed to a repair point. Plaintiff testified that
the locomotives and their exterior passageways were snow
covered when he and Erwin arrived. Id. at 248.
Plaintiff got into the locomotive cab of the lead locomotive,
NS 6706, he radioed Moon that he was on the NS 6706 and he
had a reading from his EOT device. Id. at 253. He
then turned on the headlights and proceeded to check the
other two locomotive engines. Id. at 260.
planned to unlock the doors of the locomotive units and make
certain that the handbrakes were off. Id. He was
also going to make sure that the two lead locomotives were
"on line." Id. at 261.
testified that as he was walking on the exterior engine
platform from the second unit to the lead locomotive, after
having released the handbrake on the second locomotive, the
heel of the Altra Grip slipped off his left boot. He slipped
and fell on the engine walkway between the first and second
units. Id. at 264.
Plaintiff fell his left leg went down between the engine
units and his right leg was still on the engine platform.
Id. He felt "a pop" and pain in his right
knee. Id. He told Erwin that he slipped.
Id. Yet, he continued to work. He asked Erwin to
release the handbrakes tying down the cars of coal so that
the he could perform the continuity brake test and then be in
a position to seek permission from the dispatcher for the
train crew to move the three locomotives and railcars cars
onto the Railroad's branch line and place the locomotives
in service. Id. at 293.
point, Erwin safely dismounted the lead engine - NS 6706 -
and walked back along the three locomotives to the railcars
to release the handbrakes which were set on the railcars and
had been securing them so that they were motionless.
Id. at 317 and Docket No. 39-6, Deposition of Derek
Erwin, p. 21.
releasing all of the handbrakes securing the railcars, Erwin
returned to and boarded the lead engine - the NS 6706.
then performed the continuity brake test and prepared to
request approval from the NS Dispatcher to place the
locomotives and railcars in service on the Railroad's
line. Id. at 79.
the continuity brake test was completed, Coleman moved the
three locomotives and the 99 cars of coal a short distance
along the Burke siding toward a switch which would have to be
thrown before the crew could take the locomotives and the 99
cars of coal out of the siding. Id. at 320-321.
Plaintiff or Erwin were given permission to move the
locomotives and the railcars from the siding onto the
railroad's line of road, Plaintiff, at the behest of
Erwin, decided to report that he had been injured and to
request that a supervisor be sent to the siding at Burke,
Kentucky to assist him. Id. at 314-315 and Docket
No. 39-6, Deposition of Derek Erwin, p. 25.
reported the injury over the radio to the chief dispatcher.
Id. at 307, 308. He and Erwin were told to remain on
the siding until their trainmaster arrived to assist
Plaintiff and transport him for treatment and medical care if
needed. [Docket No. 39-6, Deposition of Derek Erwin, p. 81].
Approximately an hour and a half passed from the time that
Plaintiff slipped while conducting his inspection of NS 6729
until the time that he moved the train a short distance down
the siding and then reported to his dispatcher that he had
the dispatcher advised the crew that their trainmaster was on
the way, Erwin dismounted the exterior steps of the lead
locomotive, walked along the ballast adjacent to the
locomotive engines and walkways to tie the handbrakes on the
railcars. He then climbed back up on the third locomotive
utilizing the exterior steps of the locomotive, tied the
handbrake on the third locomotive, walked along the exterior
walkway of the third locomotive to the walkway of the second
locomotive, tied the handbrake on the second locomotive, and