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Coleman v. Norfolk Southern Railway Co.

United States District Court, E.D. Kentucky, Northern Division, Ashland

January 18, 2018

MICHAEL COLEMAN, PLAINTIFF,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          HENRY R. WILHOIT. JR. UNITED STATES DISTRICT JUDGE.

         This 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.

         I.

         This 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 Company ("NSRC").

         The 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. Id.

         The 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.

         Prior 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. Id.

         During 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 that." Id.

         It took 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.

         Plaintiff 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.

         In 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.

         When 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.

         Plaintiff 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.

         Plaintiff 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.

         When 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.

         At this 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.

         After releasing all of the handbrakes securing the railcars, Erwin returned to and boarded the lead engine - the NS 6706.

         Plaintiff 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.

         After 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.

         Before 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.

         Plaintiff 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 been injured.

         After 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 ...


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