Northeast Regional 188 - Accident In Philadelphia

This engineer will be tied up in lawsuits for many years and more than likely left bankrupt.In my opinion Mr. Bostian did not set out to intentionally wreck his train hence a manslaughter charge is way off base. This accident is a simple case of human error. However if this ever gets to a trial stage with a jury, who knows ? This man could end up with a lengthy prison stay if the victims lawyers spin a web and sway a jury.

Here is a look at the two charges against Mr Bostian ---

"A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person."
http://www.legis.state.pa.us/cfdocs/leg ... &subsctn=0" onclick="window.open(this.href);return false;

"a lawful act in a reckless or grossly negligent manner" would be the key here.

"Recklessly endangering another person.
"A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury."
http://www.legis.state.pa.us/WU01/LI/LI ... 0.027..HTM" onclick="window.open(this.href);return false;

"reckless" being the key here.

More from Title 18 ...
"A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation."

This is what the DA was relying on when he refused to press charges: "consciously disregards". The DA did not believe that Mr Bostian's actions could be proven to be conscious. For example, if a person made a decision to concentrate on a radio discussion or recent traumatic event instead of paying attention to where their vehicle was.

The end result of this charge will be how the Pennsylvania court system handles "consciously disregards". "I don't remember the accident" seems to be a perfect defense when there is no hard evidence of a conscious decision (such as cell phone use or drug/alcohol use as in other incidents). So don't forget ... if you do something in Pennsylvania that may be considered "reckless" forget what you did - it is the perfect defense.

And while I have PA law open -- grossly negligent
"A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation."

This one may be easier to prove. Is operating a train at 106 MPH into a 50 MPH curve "a gross deviation from the standard of care"? Should he been aware of the risk that existed from his conduct? He lost situational awareness. He failed to perceive the danger and avoid it.

Zeke wrote:This engineer will be tied up in lawsuits for many years and more than likely left bankrupt.In my opinion Mr. Bostian did not set out to intentionally wreck his train hence a manslaughter charge is way off base. This accident is a simple case of human error. However if this ever gets to a trial stage with a jury, who knows ? This man could end up with a lengthy prison stay if the victims lawyers spin a web and sway a jury.

The lawyers for the victims will not be involved in a criminal trial. They only factor in to the civil cases.

Zeke wrote:This engineer will be tied up in lawsuits for many years and more than likely left bankrupt.In my opinion Mr. Bostian did not set out to intentionally wreck his train hence a manslaughter charge is way off base. This accident is a simple case of human error. However if this ever gets to a trial stage with a jury, who knows ? This man could end up with a lengthy prison stay if the victims lawyers spin a web and sway a jury.

The prosecution (state employee, not victims' counsel) does not need to prove that the defendant intentionally wrecked the train. It appears from the quoted statute that the prosecution must only prove that the operation of the train was grossly negligent or reckless. As to the "consciously disregards" language, the precise meaning of such would need some extensive research to determine how that has been interpreted in the past. It may be as simple as proving that the defendant knew that operation well above track speed could result in a wreck, and none the less operated in a grossly negligent or reckless manner, failing to slow or stop the train in order to determine the exact location after a distraction.

The other procedural step which I have not seen in any press reports is that the prosecutor must obtain an indictment from a grand jury before bringing the felony charge to trial. The grand jury may refuse to indict.

The large majority of criminal matters terminate with a plea bargain, so there may never be a trial.

Ken W2KB wrote:The other procedural step which I have not seen in any press reports is that the prosecutor must obtain an indictment from a grand jury before bringing the felony charge to trial.

The two pending charges noted above are misdemeanors. The law that allowed the families to press for charges applies only to misdemeanors.

According to the NY Times: "Pennsylvania’s attorney general, Josh Shapiro, accepted the private complaint, expanded the misdemeanor charges to include all eight people who died and added a charge of causing or risking a catastrophe, which is a felony."

Causing or risking catastrophe.
(a) Causing catastrophe.--A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous materials transportation), commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.
(b) Risking catastrophe.--A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.

I suppose a train fits in to one of the "other" categories.

Ken W2KB wrote:The other procedural step which I have not seen in any press reports is that the prosecutor must obtain an indictment from a grand jury before bringing the felony charge to trial. The grand jury may refuse to indict. The large majority of criminal matters terminate with a plea bargain, so there may never be a trial.

The requirement of a grand jury indictment before a felony case trial applies in Federal (U.S. District) Court and many states. Again what happened was regarding a provision of Pennsylvania law that allows a private individual file a "private" criminal compliant (in this case by the family of Ms. Jacobs) seeking prosecution. The Philadelphia DA did not pursue the matter, but a judge stepped in and issued a criminal warrant. When the local authorities did not follow through, the PA Attorney General went ahead and announced formal charges.

With the felony count added, a grand jury may come into play unless the defendant waives the right to appear before a grand jury, usually if accepting a plea or already cooperating.

http://www.nbcnews.com/storyline/amtrak ... sh-n761526" onclick="window.open(this.href);return false;

Please allow a brief "fair use" quote:

PHILADELPHIA — An Amtrak engineer involved in a fatal train crash two years ago turned himself in to police Thursday on charges including causing a catastrophe and involuntary manslaughter.

Brandon Bostian, 34, was put in handcuffs as he arrived at the Philadelphia police station with his attorney.

It'll be interesting to follow this, particularly with this telling statement:

Bostian has a personal injury suit pending against Amtrak, saying he was left disoriented or unconscious when something struck his train before it derailed. He had heard through radio traffic that a nearby commuter train had been struck by a rock. However, the NTSB concluded that nothing struck his locomotive.

"The best we could come up with was that he was distracted from this radio conversation about the damaged train and forgot where he was," NTSB chairman Christopher Hart said at a May 2016 hearing

Saying that your theory is "the best you could come up with" doesn't really help dispute the engineer's account...or lack thereof.

In my mind, the nagging question is "Who threw the rock?" That is the person that these charges should be brought against, NOT the engineer!!!

First, I believe it should be noted that the link Mr. Third Rail provided is actually Associated Press reporting and provided courtesy of NBC News.

Here is a link to Local CBS News that reports Mr. Bostian has been released from jail after arraignment and what appears to have been a 10 hour stay:

https://www.google.com/amp/philadelphia ... stody/amp/" onclick="window.open(this.href);return false;

The release was made, essentially, on his own recognizance.

Finally, I'm just a retired CPA; having taken Business Law in college, passed that portion on the Exam, and probably took about 24 class hours along the way to meet Illinois Continuing Ed requirements to hold licensure for such.

But with that "legal background" , I hold that the Commonwealth's case is at best "weak" and was brought by one aggrieved, and likely quite "well to do", family wanting a second pound of flesh.

I'm certain Mr. Bostian's FRA license has been suspended, he has or will be assessed discipline.of dismissal and such will be upheld on appeal under the (RL) Act. The only train he will ever operate again is his Lionel.

He will suffer for the rest of his life; Gaevert's, time to move on.

ThirdRail7 wrote:Saying that your theory is "the best you could come up with" doesn't really help dispute the engineer's account...or lack thereof.

The evidence in the NTSB report helps dispute the engineers account.

n2cbo wrote:In my mind, the nagging question is "Who threw the rock?" That is the person that these charges should be brought against, NOT the engineer!!!

What rock? ".. the NTSB concluded that nothing struck his locomotive."

Or are you wanting to charge the unknown person who threw a rock at a completely different train?

(So if I run into a car on a freeway because I was distracted by an accident on the opposing lanes I can blame my crash on whomever caused the first accident???)

justalurker66 wrote:

ThirdRail7 wrote:Saying that your theory is "the best you could come up with" doesn't really help dispute the engineer's account...or lack thereof.

The evidence in the NTSB report helps dispute the engineers account.

That quote is from the NTSB chairman so it doesn't dispute the engineers account with anything other than "we don't believe the windshield was hit by a rock," even though two other trains were. They basically came up with the above conclusion because they lacked any other conclusion. Such an argument may not hold up.

justalurker66 wrote:

n2cbo wrote:In my mind, the nagging question is "Who threw the rock?" That is the person that these charges should be brought against, NOT the engineer!!!

What rock? ".. the NTSB concluded that nothing struck his locomotive."

Or are you wanting to charge the unknown person who threw a rock at a completely different train?

(So if I run into a car on a freeway because I was distracted by an accident on the opposing lanes I can blame my crash on whomever caused the first accident???)

There is a thing called mitigating circumstances. If you were rubbernecking, that is one thing. But if the accident directly caused you to have an accident, that may qualify. I have seen numerous railroad investigations that result in the FRA finding a cause but with mitigating circumstances. This can lead to changes in a practice, characteristic, rule or policy. In this case, they are taking a statement that was given "I don't remember what happened" and combining it with their opinion that they don't believe a rock damaged the train (although, two trains were and there are no witnesses one way or the other) and all of that is being used as "evidence." That's great for a report from an agency that lacks regulatory powers or enforcement powers but is that enough "evidence" for a trial and conviction? We'll see!

As for the NTSB's report, there are MANY things that I know for a FACT that never came out in the the original investigation and I know for a FACT that certain people were NEVER interviewed. Well, that may change since I'm going to bet Mr. Bostian's may **ahem** persuade some people to offer their testimony. If Mr. Bostian goes down, it is likely he will not go alone which may be what this is ultimately about. The family said 'no one was held accountable" and this may help find out if this is a story of a lone, distracted engineer (if you believe the rock story) , a story of a lost engineer that didn't know his location (which would ultimately point to a training, supervision and/or certification problem) or a combination of things...along with something else.

My personal opinion has always been " a combination of things...along with something else."

the rock conspiracy started because of pictures of windshield , the FBI investigation narrowed it down to cracks in windshield started appearing during the derailment.
don't forget this train plowed into dirt at close to 100 mph.
Some still like to believe the rock, despite evidence the FBI provided to NTSB ??

DutchRailnut wrote: Some still like to believe the rock, despite evidence the FBI provided to NTSB ??

Personally, I don't believe a rock by itself should cause that much of a distraction, unless it comes through the windshield, which didn't happen. Personally, I don't believe listening to the radio by itself is a big enough distraction to cause you to completely lose your location. If that is the case, trains would never remain on the rails.

My personal opinion involves other things but there is a lack of hard evidence since the only witness as to WHY this occurred initially didn't recall and now says Amtrak provided an unsafe working environment (which "probably" has credence.)

This is why the city said they couldn't prove their case. We'll see how much of the case the state can prove, which assumes there isn't some sort of plea bargain.

ThirdRail7 wrote:That quote is from the NTSB chairman so it doesn't dispute the engineers account with anything other than "we don't believe the windshield was hit by a rock," even though two other trains were. They basically came up with the above conclusion because they lacked any other conclusion. Such an argument may not hold up.

The quote is saying the sky is blue while we are arguing over whether the grass is green. The quote ("The best we could come up with was that he was distracted from this radio conversation about the damaged train and forgot where he was.") was a quick summary of the determination. Not a presentation of every fact. For a presentation of facts, turn to the NTSB report (and turn off the conspiracy theories).

ThirdRail7 wrote:There is a thing called mitigating circumstances. If you were rubbernecking, that is one thing. But if the accident directly caused you to have an accident, that may qualify.

I would consider the other train's rock incident and resulting radio traffic to be indirect. There was no damage to the track, signalling system or Mr Bostian's train. The only damage apparent was to Mr Bostian's situational awareness. Any distraction was something that an experienced qualified engineer with a "spotless record" should have been able to handle.

If Mr Bostian's defense is "ATC/PTC should have been active and prevented the accident" it will be an interesting case that could relate to "assisted driving" cars in the future. "My car has a collision avoidance system - any accident is a failure of that system." Or barring any system failure, is the operator responsible for the vehicle. There was no system failure on 188. Mr Bostian knew the capabilities of his train and the territory and failed to operate his train safely.

ThirdRail7 wrote:The family said 'no one was held accountable" and this may help find out if this is a story of a lone, distracted engineer (if you believe the rock story) , a story of a lost engineer that didn't know his location (which would ultimately point to a training, supervision and/or certification problem) or a combination of things...along with something else.

My personal opinion has always been " a combination of things...along with something else."

I believe it was "something else" ... It is easy to blame someone else - the rocks, the railroad ... but there is personal responsibility. A responsibility Mr Bostian accepted every day he released the brakes on a train and notched the engine into motion. A responsibility that the families would like to hold Mr Bostian accountable for. Don't screw up.

justalurker66 wrote:

ThirdRail7 wrote:That quote is from the NTSB chairman so it doesn't dispute the engineers account with anything other than "we don't believe the windshield was hit by a rock," even though two other trains were. They basically came up with the above conclusion because they lacked any other conclusion. Such an argument may not hold up.

The quote is saying the sky is blue while we are arguing over whether the grass is green. The quote ("The best we could come up with was that he was distracted from this radio conversation about the damaged train and forgot where he was.") was a quick summary of the determination. Not a presentation of every fact. For a presentation of facts, turn to the NTSB report (and turn off the conspiracy theories).

I have the NTSB report and it states (and alludes to in other spots) that based upon the investigation and facts, the accident was caused by a loss of situational awareness likely because his attention was diverted to another train. The reason they used the term LIKELY (instead of saying this was the direct cause of his loss of situational awareness) is because they don't have direct evidence that this is what indeed caused the accident. It is the best theory they have to go on after eliminating other theories. However, that does not make it a solid fact. It is as summarized, "the best they could come up with," since the only person that would know, initially stated he didn't recall. To state that is not a conspiracy theory (nor have I suggested there is a conspiracy.)

I just wonder (which I am allowed to do just as you are allowed to post your thoughts) if that is strong enough since the burden of proof (if I understand law, which I really don't) must be met without a reasonable doubt. There is no doubt as to who crashed the train and how he did it but all a lawyer has to do is plant reasonable doubt as to why he did it and the case won't fly. The city may have had similar thoughts which is why they probably didn't go forward with the case.

justalurker66 wrote:

ThirdRail7 wrote:There is a thing called mitigating circumstances. If you were rubbernecking, that is one thing. But if the accident directly caused you to have an accident, that may qualify.

I would consider the other train's rock incident and resulting radio traffic to be indirect. There was no damage to the track, signalling system or Mr Bostian's train. The only damage apparent was to Mr Bostian's situational awareness. Any distraction was something that an experienced qualified engineer with a "spotless record" should have been able to handle.

If Mr Bostian's defense is "ATC/PTC should have been active and prevented the accident" it will be an interesting case that could relate to "assisted driving" cars in the future. "My car has a collision avoidance system - any accident is a failure of that system." Or barring any system failure, is the operator responsible for the vehicle. There was no system failure on 188. Mr Bostian knew the capabilities of his train and the territory and failed to operate his train safely.

ThirdRail7 wrote:The family said 'no one was held accountable" and this may help find out if this is a story of a lone, distracted engineer (if you believe the rock story) , a story of a lost engineer that didn't know his location (which would ultimately point to a training, supervision and/or certification problem) or a combination of things...along with something else.

My personal opinion has always been " a combination of things...along with something else."

I believe it was "something else" ... It is easy to blame someone else - the rocks, the railroad ... but there is personal responsibility. A responsibility Mr Bostian accepted every day he released the brakes on a train and notched the engine into motion. A responsibility that the families would like to hold Mr Bostian accountable for. Don't screw up.

I agree with your assessment on a personal and professional level. However, I add that if your child is 10 years old and chews noisily with his or her mouth open (and there is no medical reason,) while we're annoyed at the child, we also look at the parents and wonder "how did you let this happen?" There is personal accountability and there is corporate responsibility. He shouldn't have crashed, but it is obvious (in retrospect) the curve should have had protection...ESPECIALLY the speed was raised in the area some years prior and again, it makes me wonder if an argument can be poked in the personal responsibility portion. In other words, for lack of a better phrase "I'm the victim since Amtrak failed me and therefore, you!"

At any rate, you're not a lawyer, a judge or a witness to the event. Neither am I. What we think is irrelevant. What the lawyers, judges and potential witness think is what matters, which is why I think it will be interesting to follow. It may never even go to trial.