In a lawsuit filed April 5 with the U.S. District Court for the Eastern District of Kentucky, in Lexington, NS attorneys allege that Engineer Kevin Tobergte and Conductor Andrew Hall failed to keep a “reasonable lookout” so they could slow their train and eventually stop it.
Tobergte and Hall were in charge of southbound train No. 175. According to court documents, the train was stopped on NS tracks in Georgetown, Ky., when northbound NS train M74 collided head-on with No. 175. The collision sparked a blaze, derailed 13 freight cars, and injured four railroaders.
NS lawyers allege southbound train No. 175 went through an Approach and Stop signal without slowing or stopping until after the crew passed the Stop signal. Lawyers for the railroad also tell the court that after the train crew made an emergency brake application, they failed to alert dispatchers over the radio or declare an emergency.
The railroad seeks compensation from the railroaders to cover the cost of damages to two destroyed locomotives, derailed freight cars, the right-of-way, tracks, signal equipment, loss of use of the equipment, diesel fuel clean-up, as well as damage payments to landowners adjacent to the wreck and NS customers for delayed freight.
Norfolk Southern declined to comment on the matter because it is pending litigation, a railroad representative wrote in an email to Trains News Wire. Addresses for the train crew were listed in the court filing, but Trains was not able find quick contact information for the railroaders and get their comment. The Brotherhood of Locomotive Engineers and Trainmen, a railroad labor union, did not immediately respond to a request for comment.
The allegations, if true, represent a serious operating failure.
Trains News Wire spoke with a railroader familiar with Norfolk Southern operating practices who says, on background, that any time a train on NS goes into emergency, the first priority of the train crew is to call on the radio, “Emergency” three times followed by the train’s location to alert dispatchers and nearby trains.
If the No. 175 crew did not do this, as NS alleges, the crew on train M74 would have had no idea until they could see train 175, at night, that it was blocking their path.
One operational practice not mentioned in the Federal court filing was whether the 175 train crew called on the radio signal indications as their train passed signals — another NS requirement to ensure train crews remain alert, the railroader tells Trains.
The railroader also says that NS’ lawsuit against the train crew is serious, but not surprising. The person says that stop signal violations used to be punishable by 30-days suspensions as little as a decade ago. Stop signal violations can now come with an automatic firing. The NS lawsuit, the railroader says, is “one more way of emphasizing how seriously they want to take stop signal violations.”
The railroaders in the lawsuit have about three weeks to respond to the court filing.
UPDATE: Full story write-through. April 6, 2018, 2:01 p.m. Central time.
Singling people out.How class ones have done this?How much money are we talking about here?2 lost locomotives?How much will that run.Surely NS has got insurance to cover this.Accidents are going to happen just like shootings will
Suing the by now former crew members may seem like a good way to get the message out, but it’s just overkill. Those two fellows would have to live hundreds of years to pay all of the damages. Whatever the reason they overran the red, it is a silly waste of time and money for the lawyers to spend an effort on such a suit. There are more appropriate ways to deal with such incidents.
DREW GMITRO – Well said! The NS “old school” way was in place even at staff levels when I arrived in 1998. The goal of managers was to know what their staff was doing every minute of every day, whether that activity had any value or not. It improved a good bit in many places over the past 20 years, but apparently still flourishes in spots.
I would really like to know who’s brilliant idea it was to sue these guys and how he talked everyone else in Sr. Mgt into letting it proceed.
Has the NTSB confirmed if the intermediate signal was functioning properly?
What is the point of this charade? Unless one of the crew wins the lottery they won’t be paying any of a multi-million judgment. Maybe a defense to a FLEA claim? Like the idea of a PTC counterclaim or defense….
I wonder if there will be a counter suit alleging NS had the ability to be operating the train in PTC test mode, but failed to do it.
I’ve worked for NS and currently work as an engineer for BNSF. I’ve ALWAYS thought the idea of firing a crew for running a red, as is NS’s rule vs a decert and time spent on the ground as a brake man, as is BNSF’s rule, is absurd. No engineer, or crew, want to get by a red. Never. It’s one of our nightmares. But if you think engineer’s run any differently at BNSF because we know we won’t be fired, vs engineer’s on NS, your crazy. Accidents happen. For anyone here to make assumptions as to what happened, and what the crew did or did not do, without all the facts, is idiotic. I will say this having run PTC every day on BNSF for over a year: these accidents will be a thing of the past. PTC is incredible and all the crew’s really love it, even though we anticipate PTC leading to one man crew’s. Having worked at both RR’s, NS had the lowest moral of any employer I’ve ever worked for. They treat TYE employees as a liability, not as an asset. There is such a disconnect between management and workers at NS you’d swear it was like NY Yankees vs Boston Red Sox, to use a sports analogy.
@ Mark, I doubt they were asleep. They were awake and responded to the red, just not in time. Otherwise, they would have ran through and damaged the switch and kept on truckin’ right up until their cornfield meet.
@ Jerry, while i agree that reporting should be encouraged and rewarded, that is not what is happening here. In fact, the exact opposite is being incentivized. For DECADES, the penalty for running a red with no resulting damages was time in the penalty box with appropriate review, not immediate ejection from the game (career). Someone came along and changed that without justification, just to be a Harvard educated hardass, and that has created the atmosphere where crews who find themselves in a ‘nothing to lose’ situation go ahead and gamble during a moment of crisis with a fix of their own. A reasonable policy was changed to a boneheaded one, without rationalization, which breeds boneheaded reactions by crews in their execution of duties during a crisis, which has led to the railroads upping the boneheaded ante with feign lawsuits against the slaves. The whole drama is so stupid. Somebody needs to go back and forensically examine this entire chain of events.
Not being a “railroader”, I have a question. First, the article states the crew failed to contact the dispatch. OK. Could they have reversed and cleared the switch? I know that the DS must clear any reverse movements, so just a rational question here. No need for name-calling and huffing and puffing. I agree that hours can be fatiguing. However, 2 tours as a LRRP in SE Asia were rarely an 8 to 5 day. Again, as an outside observer, you do not have to “navigate” a train, just follow the signals. Be safe out there folks.
“The beatings will continue until morale improves.”
This notion of suing one’s own employees is a novel one, and most unusual. If an employer wants to sue an ex-employee, that is something different. But with all the foregoing analysis that looks at the matter from nearly every angle, I’m not going to add anything much. But this has me scratching my head because there will be nothing to recover from a pair of former railroaders, if NS also fires them. So, why is NS doing this? Darned if I know.
NS C40-9 8798 and NS AC4400 4063 were destroyed.
In fairness, all they would have to do is miss the approach signal and come wheeling around a tree-lined curve into the home signal that was red that they did see but simply couldn’t get stopped in time. While this crew ran the red signal, they did not run through the switch lined against them. In other words, by the time their train stopped, their mistake had led to no damages up to that point.
I have to wonder if the change from 30 days on the street to automatic firings for running a red while causing no damages is what drives crews towards trying to fix their mistakes without waking up the world. That’s a good question to ask the railroad. It was as if trying to avoid being fired is what led to very bad decisions to keep the infraction quiet and not alert the world. And their failure to alert was the biggest factor that did lead ultimately to the damages. The offending train had 5 units, unsure if all 5 were on-line, but if the event recorder showed they were trying to recover their air or attempted to power back in reverse to clear the foul point before taking any steps to alert the world, that would be very damning.
Quite frankly, the crew is lucky that the innocent crew on the northbound lived. If the telescoping had gone differently and resulted in the BNSF unit getting wiped above the frame instead and killed one of those guys, the offending crew would be dealing with a district attorney wielding manslaughter charges instead of just an employer lawsuit for damages.
I did notice from the news coverage how the trackside tree line was cut down quickly to facilitate wrecking operations. My question is why can’t the trackside tree line get cut down so as to help with interlocking signal sighting when coming around any curve where the signal could be seen if not for the tree line being in the way? That’s another good question to ask the railroad.
This is not about money recovery. This is about sending a message to the remaining wage slaves. Everywhere you turn, working men and women are expected to do more with less. Longer crew districts, smaller extra boards, shorter rest periods, less vacation, doubled size of dispatcher territories. Add to it, penalties for non-damage incidents that are much less forgiving. We have set up this perfect storm, for no greater reason than feeding some investors bigger welfare checks they don’t have to work for. The working people are facing impossible odds just so the non-working people can tweet all day long. That’s a good question to ask your conscience.
MARK KASPAR _ Hope my post reaches you before this thread rotates off the web site. Yours is the best post ever written because you’ve been there done that. NOW A STORY FROM RICHARD ANDERSON’S NORTHWEST AIRLINES: remember the flight crew aiming for MSP but woke up over Green Bay (Wisconsin). Fatigue is fatigue is fatigue. A lawsuit ain’t gonna stop it. The people in the cab are (wait for this) HUMAN BEINGS. It’s true I’m older now but even when I was younger I had a fixed schedule: 6:30 to 5:30 MoTuThFr with a midweek restful noon-to-four Wednesdays. Put me in the cab, middle of the night on a rotating irregular schedule, see how long I’d be awake. An hour?
Judging from the majority of the comments here, { with the small exception by some who quickly dismissed the crew as slackers } we can come to the conclusion that the crew had allegedly fallen asleep. It’s highly doubtful that both crewmembers were suicidal, right? I also think most of us realize that the lawsuit brought by Norfolk Southern against the train crew isn’t about recovering damages…..they’re well aware two working stiffs aren’t going to amount to much, financially. It’s more than likely about setting some sort of precedent { a horribly misguided precedent } for operating crews to cower under – the threat of a lawsuit. A perverted version of the scared straight program….”We’ll scare ’em awake!” The age old question of fatigue rears its head again & this is what they come up with…….instead of the obvious option of more rest. My employer has experimented with several options over the years with little luck, which left the door wide open for Uncle Sam to get involved and force ‘federal rest’ upon us……which is another joke. When the carrier opened their ears for suggestions, we shouted loudly……and of course……they didn’t hear us. So many days on with so many days off didn’t work { you’re still on call during your ‘on’ days with no way of telling when you’ll be called to work, same as before } Assigned calling windows during a 24 hour period didn’t work for the carrier. My { and that of many } idea was simple. I’m a human being with varying requirements for rest. Let ME decide how I feel & how much rest I feel I need. A deadhead to my outlying terminal? A quick & legal 8 hours should do it….unless of course, you’re feeling fatigued. Have the option to take more. A 12 & tow 16 hour monster trip? 16 hours of undisturbed rest. Anything on duty over 12 hours should have the mirrored availability of off time. What it really boils down to is simple: How do you feel? Do you feel rested? Do you feel safe? No? Have the option of taking up to 18 hours of undisturbed rest. Every tie up time. No questions asked. I’m sure this scenario would invite abuse by some who would routinely book maximum rest, but this could be curtailed by having their layoff options limited by the crew callers….maybe.. { don’t get me started with Uncle Sam’s ‘Family Medical Leave Act’ }. For those who think the upcoming Positive Train Control is the answer….we’ll have to wait & see. For it’s staggering cost, it had better…..but from what I’m hearing, it’s got many bugs to work out……emphasis on ‘many’. If Uncle Sam was hell bent on a mandate of the electronic type, the pipe dream of Positive Train Control should’ve been shelved in favor of the much cheaper & time proven collision avoidance system of Automatic Train Control. I operate under it & I love it. I will lose it to PTC, ultimately. ATC isn’t perfect….you can still collide with another train, but at restricted speed…..which greatly reduces damage, death { highly doubtful } & injury. There are answers out there for today’s problems. Hideous lawsuits & hideous mandates aren’t the answer.
@Peter – given the current atmosphere of forgiveness by the courts, and society’s lean towards escape from accountability, I seriously doubt criminal charges would be brought even if a death had been involved. I mean seriously, if blowing up a town and killing 47 people, or killing 8 and causing millions in damage because the engineer was daydreaming doesn’t bring a conviction, this would be considered about as significant as a bug on a windshield in the eyes of the Justice Department.
Reporting near misses should be a good thing that is encouraged and even rewarded. The subsequent investigation as to why a near-miss happens could be used as a lesson to all employees so that a repeat of the incident could be avoided.
PETER – Any of us who follow any industry know that the trend is TO REPORT NEAR MISSES! (Many companies haven’t yet figured out how to gain from the reports, but that’s another story).
Hide you near misses for fear of being fired is the road to injuries and fatalities. Successful companies work with their front-line employees. Failing bureaucracies work against their front-line employees.
STEVEN BAUER – Your post needs to be imprinted into the brain of everyone who reads TRAINS-MAG. Generally I am pro-worker and anti-union. Where in my opinion the union DOES have a function is on operational safety. Operations includes both the road and the shop floor. No one knows safety better than the front-line worker, wherein the front-line worker is both an individual and//or a union member. Every work shift anywhere in USA or Canada, workers discuss safety issues among themselves or with management. If Norfolk Southern wants to permanently shut down that conversation, than they can sue their own work force. The results will include freight trains laying in the ditch and shop floor workers cutting their hands and their faces off. Norfolk Southern, have at it.
Well Noel, you sure don’t seem to mind making an attack on the unions, as so many others in here do, and you want to point fingers about attacks? All I asked was where you got your information regarding union crews not wanting some sort of scheduled work hours? And are you not in a sense making a personal attack on the crew? Were you a crew member on either one of those trains? Do you know for a fact that signals were not called out prior to? Do you know the work on and off duty times for the crew for say, the week prior to this incident? With the present situation in the entire industry right now, given the cuts to save money, and now all of a sudden they are hit with a business increase and are scrambling to find people, don’t you think the existing crews are being run a little ragged in some spots throughout the whole industry? I wish I could really post half the stuff I see out here from behind the throttle, and what my best friend sees working for the CN up in Wis. Sometimes I think that the industry is just happy anything is moving right now, much less on a schedule.
If you were in that seat, and something like that happened to you, do you know for a fact how you would react? If one has never been in the seat, its easy to speculate a lot of things from the chair at home or when playing with the train simulation game or listening to a scanner and “knowing what’s going on because a person happens to know a lot about trains.” But there is a difference between knowing a lot about trains and knowing a lot about railroading.
Am I trying to minimize this incident? Not at all. But I do not have all of the facts either. I hate seeing things like this happen. But I get sick and tired of people, every time something like this happens, feeling a need to take a pot shot at the thousands of field people of move this stuff day in and day out. If you have an issue with crew scheduling, say so. But don’t use that as an opportunity to speak on behalf of, and take a jab at, the union and its workers and then feel bad when someone replies to your post. Then you guys scratch your heads when the crews don’t seem to wave, blow the whistle, or seem friendly when they pass by.
Finally, you seem to think automation would solve all of the problems. How is that working out for UBER? I can hear it now: “Oh that is just one accident.” Tell that to the family of the lady that got hit. Should the family sue the person who wrote the code for the computer that operates the car?
Fire away with the replies. I am headed to Milw for a beer at a great brewery. After all it is my scheduled off day, which evidently I don’t seem to want (That’s news to me).
I am glad that these debates deteriorate to personal attacks so quickly. The responses just go to show how poorly we understand the causes for these accidents. The fact is the crews are not attentive. They miss signals, and radio call outs and such. Can anyone propose a solution to fatigue caused mishaps? The railroad’s law suit is an attempt to open the investigation and maybe, perhaps, propose something which can be done about it. This means lives may be saved if things change.
What are the numbers of the locomotives destroyed?
As a retired professional railroader, I must add a comment. I called crews on the NP and the crew districts were shorter and a crew could get a decent rest. The proper “rest” issue is paramount to a well running freight railroad and the NTSB knows this. The “grind” of chain gang (unassigned) freight service wears on a person.
NS lawyers make strong accusations that they will have to prove in court. The responses from the train crew will be interesting. What set of circumstances led to the crew passing two signals without taking action to slow and then stop the train? Why didn’t they report the emergency brake application?
Well Jerry, I went back and read my first post. Nowhere do I see any reference to me saying I am better than anyone, or saying the crew was blameless. And this, after I have had a couple of beers on my assigned day off that evidently the unions don’t want, or so I am told. Perhaps you read something in there that I do not see.
Also, regarding your last post, I take it that you are under the impression that only non union workers care about safety? Boy I wish you could sit in a few on our safety meetings and hear some of the items discussed. As I said in my last post, which I am sure you dismissed before you even read it, I don’t have all the facts as to what happened, and I am sure most of the Trains readers dont either. If there is any self righteous finger pointing going on, perhaps the finger should be pointed at the guy you see when you look at in the mirror in the morning, since you seem to have all the answers already as to what happened.
@Charles Landy – it does not take an obsolete union to enforce safety. I’ve worked for several companies who were non-union who had pre-shift safety meetings, safety committees, Brother’s Keeper and safety culture programs – and subsequently had very good safety records. If the people on the line don’t have their heads in the game and accept responsibility for their action , there isn’t a union in the world that prevent them having accidents.
@Steven Bauer – you lost me completely in your first post as it went something like Resurrection…hypocritical pompous preaching…oh thank you Lord I am not like these heathen…dodge accountability… blah blah blah something something.
Thank you Mr . Bauer for your excellent response to the know it alls here.
Mr. Cook: Feels good to lash out. I guess your wife doesn’t allow it. Once again my point was using absurdity to illustrate absurdity. Geeeez.