Northeast Regional 188 - Accident In Philadelphia

justalurker66 wrote: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.

Mr. Bostian was clearly being held accountable for that responsibility in the civil proceeding prior to the filing of the criminal complaint. It is understandable that the families may feel that is insufficient, but that does not mean that a criminal act was committed. Especially in emotionally charged circumstances such as this one it may appear to victims that the administration of the law is somehow unfair, but truly it is that life is unfair. The law strikes a balance in criminal matters to ensure that criminal process is not abused by prosecuting a person when the evidence is clearly insufficient to prove the elements of the crime beyond a reasonable doubt.

Ken W2KB wrote:Mr. Bostian was clearly being held accountable for that responsibility in the civil proceeding prior to the filing of the criminal complaint.

With all due respect, what penalty has Mr Bostian suffered? Amtrak settled the civil case and paid that penalty. And unless I missed it, Mr Bostian is currently out on medical leave and has not been terminated or penalized by Amtrak. (And he is blaming his current state of disability on Amtrak and suing them for damages.)

The families feel that a crime was committed. The state AG agrees and added on his own charge. The courts will sort out the validity of the complaint and a penalty. I do not agree with all the charges against him but I don't see the point in attacking the family members who would like Mr Bostian to see his day in court. The families and AG are not violating any laws by seeking criminal prosecution.

Everyone:

I have been following developments of this subject for some time and I commend our fellow
members for the interesting discussion here.

I was disappointed when I found out about that criminal charges would be brought against
Brandon Bostian because I do think that vandalism was an indirect cause of this wreck.
From mention there is no doubt that there is politics behind these charges in this case.

http://www.philly.com/philly/opinion/co ... 70519.html" onclick="window.open(this.href);return false;

JL: I do think that a crime was committed - by vandals that were either rocking or shooting at
trains in that vicinity on that night - the other two vandalism reports that night can not be in any
way discounted - and that the miscreants responsible are literally getting away with murder...

What I think happened is that Engineer Bostian may have been distracted or even "taking cover"
by ducking down away from the windows on #901 and simply lost track of where he was - and
when he did finally notice it was too late...

MACTRAXX

MACTRAXX wrote:From mention there is no doubt that there is politics behind these charges in this case.

http://www.philly.com/philly/opinion/co ... 70519.html" onclick="window.open(this.href);return false;

A couple of flaws I will point out (without claiming that these are the only flaws in the commentary):
Municipal Court Judge Marsha Neifield was acting within her responsibilities as a judge when she accepted the family's complaint. The long winded "separation of powers" argument is irrelevant. She was given that power by laws provided by the other two branches of government.
"To the delight of the plaintiff’s attorneys seeking millions of dollars for their clients" is off base. The penalty for the criminal charges sought by the families are up to 5 years in jail ... not millions of dollars. (The felony charge added by the AG carries up to 20 years in jail and/or a $25,000 fine depending on degree.)

The concept that the prosecutor can act as judge and jury and refuse to press charges is troubling. That is why the commonwealth has the law in place where private citizens can ask a judge to compel misdemeanor charges.

MACTRAXX wrote:JL: I do think that a crime was committed - by vandals that were either rocking or shooting at
trains in that vicinity on that night - the other two vandalism reports that night can not be in any
way discounted - and that the miscreants responsible are literally getting away with murder...

At best it would be manslaughter, not murder. Unless it could be proven that the vandals intended to kill. Perhaps the vandals should be brought up on terrorism charges? Or simply shot at dawn without a trial. That would make some people here happy.

If caught they would face the same legal system Mr Bostian faces. Innocent until proven guilty and let the facts speak in court. No prejudice for or against the accused.

I wonder if anybody on here has experienced a rock or other missel hitting the front of their train at 70, 80, 90, 100 or even faster? I venture to say not many if any have. I have more than once over the years and today I count myself very lucky to have survived running through some of the rundown areas that we had to pass through. It makes a noise like a gunshot and will disorient anybody for a period and scare the living s**t out of you.
I would not trust a Philadelphia jury in a case like this, I think a trial by judge would be better for him and I sincerely hope he comes out OK on this farce of politicians trying to make a great name for themselves by putting this guy on trial. I would not want to be in his shoes. For many years locomotives have been a target for all kinds of attacks and the police and other authorities have more than once taken the position that it was just an engineer. The vandals get off with a light sentence or worse probation only to do something even worse next time. If they catch these or the other ones doing this stuff they should serve a long and hard jail sentence period.....
Noel Weaver

NW:

Good observation from someone that has experienced vandalism incidents as a retired engineer.

I have been on trains that have been rocked - it can be startling to a passenger let alone a front
line employee responsible for the operation of any train when they are targeted...

JL: I agree - Innocent until proven guilty in this case with those responsible being brought to
justice. If they are found guilty penalties should be as strong as the law allows.

MACTRAXX

justalurker66 wrote:With all due respect, what penalty has Mr Bostian suffered? Amtrak settled the civil case and paid that penalty. And unless I missed it, Mr Bostian is currently out on medical leave and has not been terminated or penalized by Amtrak. (And he is blaming his current state of disability on Amtrak and suing them for damages.)

With regards to your "what penalty" question, I will refer to many other posters above, who have (quite correctly) stated that:
1) he will never work in engine service again - certainly not on Amtrak, and quite likely not anyplace else; and
2) regardless of the immediate circumstances when the incident happened - whether he had the capacity to know what was going on right at the time, or hadn't he - he clearly knows, now, what happened, and that it was his train, and that he has been ultimately deemed as the "weak link" which snapped and allowed the catastrophe to happen. That must be extremely mentally traumatic.

It's a matter of lifestyle. For trainmen and enginemen, our entire lives tend to revolve around the RR. You start out not having a choice; maybe later, you get some seniority and can theoretically, maybe, work almost-approaching-normal days and hours. But by then, it's too late - the bug has already been ingrained into you. Even if you've been smart, and have had a theoretical "Plan B" (/C/D/E/...Z) in place... as long as you're associated with the RR at all, you sort of just live and die by it. That's how it is. It's a difficult lifestyle to describe, but let's just say that - to many dedicated railroaders, the job tends to come ahead of other "very important" things: your partner, your kids, your happiness... It isn't about being a train buff, or about being loyal to the company. It's moreso a feeling of duty, and most of us take it very seriously. We all know what is on the line every time we show up to work.

So with that said, for this disaster to befall a fellow who, by all accounts, was VERY much ingrained into "the lifestyle"... imagine living with that guilt, anxiety, depression, forever. You've been told you've made a big mistake; you didn't mean to do it; you now regret every second of it, whether you remember it having happened or not. You've failed your working brothers and sisters, your passengers, the company; failed at your duty; before long, the mind might take you down to dark places where you've also disappointed family and friends, who were once so proud of you when you first hired out in that crisp clean uniform... I could go on. This isn't just a job; for many, it's our life's work.
Oh, and forget about getting psychiatric help, because your company health insurance (which you've been paying in to all along) had automatically cut out, long ago, after a fairly short length of out-of-service time. Hope you can afford those bills out of your own pocket, on top of all of the attorney fees and the years out of work. Oh, and if you're convicted on that felony count for catastrophe, then you'll never again have ANY hope for a return to a normal life with a normal job - not even one at the "Golden Arches"...

This poor fellow's only useful allies at this point are his lawyer(s), and maybe the BLET organization.
No one has definitively said that he is receiving medical leave; I would estimate that matter to be a bitter and ongoing fight. With no insider information to his particular case, I will generally state that it is more likely for a leave-parachute to be denied, than it is to be put through.

I'm not saying that the fellow is guilty or innocent. Like Mr ThirdRail, I think that there are a lot of factors involved, some of which haven't been (and won't be) brought to light. In any case, I don't see what purpose is served, at this point, by throwing him away to the penal system.

Very well said, Noel and Eric.... and as an engineer myself, that pretty much does sum up the lifestyle.

Yes, very said both Eric and Noel!

Even my friend who is an engineer at UP, he still remembers when the first time he had something hit the glass; he described it as "like the British Navy shot a cannonball at me!" And you know it what turned out to be? A kid with a potato launcher!

]

ThirdRail7 wrote: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.

I'd like to point out that I'm not a lawyer by trade, although I did have some courses in college. It is true that the burden of proof without a reasonable doubt must be met for a criminal case. This is not a criminal matter, but is now a civil matter. The burden of proof is relaxed.

I would think a professional engineer ( or driver in road transport) is not expected to be above making mistakes, just like us amateur drivers do. But I think they are expected to behave in a logical and non panicky way. And to me that is the main thing he apparently did wrong. If he was at all unsure of his location, or the safety of his train, then surely the logical thing to do would be to slow down or stop. If he felt dazed or unwell , again the logical thing would be to stop. So he either has to claim he can't remember what happened,( and was presumably in a concussed state) or or some circumstance made him absolutey sure of his location.
As a registered Electrical Service Technician, I am aware of the apparent unfairness of this. The NZ electrical act openly states(or did last time I checked) the only defence for causing harm is to be unaware of the regulations, or the danger of your actions. So a amateur can use this defense, a registered person has to know all the regulations, and safety procedures as part of their registration, and has no defense if he violates them.

alewifebp wrote:]

ThirdRail7 wrote: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.

I'd like to point out that I'm not a lawyer by trade, although I did have some courses in college. It is true that the burden of proof without a reasonable doubt must be met for a criminal case. This is not a criminal matter, but is now a civil matter. The burden of proof is relaxed.

It's criminal charges against Mr. Bostian now, not civil. This is indeed a criminal case that is going forward.

Silverliner II wrote:It's criminal charges against Mr. Bostian now, not civil. This is indeed a criminal case that is going forward.

Yep --- criminal charges:

Involuntary Manslaughter
"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."

"Grossly Negligent" defined in PA law as: "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.

Reckless Endangerment
"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."

"Reckless" defined in PA law as: "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."

(The local prosecutor felt that he could not prove "consciously disregards" when he refused to prosecute the case.)

Causing or Risking Catastrophe (Felony added by the AG.)
"(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."

It's refreshing that Pennsylvania law allows citizens to bring criminal actions, and that a judge is supporting that. My understanding is civil suits only allow money damages, not punishment.

What happened in this accident meets my definition of "involuntary manslaughter" - death by machine operator that should have been preventable. I'm not sure what the punishments should be since I wasn't in the cab, 1 day, 1 month, or community service. Driving him into bankruptcy is not appropriate. Is his union providing his legal defense?

Interesting how the State Atty General is piling on. That's unwelcome politics.

Hope Amtrak installs those inward-facing and outward facing cameras so we won't have to speculate in the future.

My 2 cents FWIW: Noel's analogy is spot on, but I'd add that most of us have had a rock strike our windshield while driving down the interstate. It can indeed be startling.

Does that rock always cause damage? No. And if I were Mr. Bostian's lawyer, the rock theory is plausible, raising a reasonable doubt, because other rock throwers had been reported in the area. Put it this way: can you PROVE his train WASN'T hit by a rock? It's hard to prove a negative, but given the radio reports on vandals in the area, it's plausible that the train was hit by a rock, that the rock itself caused no damage, or that the derailment later obscured the damage caused by the previous rock, leading investigators to conclude that windshield damage was caused solely by the derailment.

As for the criminal charges, when accidents such as these happen we struggle to blame SOMETHING. We want an explanation. We want a pound of flesh. And the engineer is the logical candidate. People drive distracted all the time. That distraction could be a rock hitting a car's windshield, which causes us to not see the car moving into our lane at a slower rate, and guess what happens? As much as I sympathize with the plaintiffs, Mr. Bostian clearly has factors in mitigation (including a short turn in DC, right?).

This was a vulnerable curve, PTC had been mandated and planned but not prioritized. In hindsight, this curve (along with the Spuyten Dyvil curve on MNRR) should have had PTC installed on a priority basis. Someone made a mistake in judgement. Should they be criminally charged? In legalese, it's called "mensrea", translated from Latin: "the act is not culpable unless the mind is guilty". Did Mr. Bostian intend to wreck that train? What was his motive? Alluding to the SD wreck on MNRR, did Mr. Rockefeller intend to crash the train? There's no evidence to support that in either case. Where's the evidence of reckless disregard? There is none. AFAIK, he had no history of unsafe operation. If I were a defense lawyer, I'd ask for summary judgement of not guilty.