Here is something for everyone interested in a career with a railroad.
As a result of an accident for allegedly involving running a red signal, BNSF has sued the engineer, not the engineer and conductor, but the engineer only for damages. They sued him personally, not in his capacity as an employee. From the looks fo the suit, the company is attempting to strongarm the engineer from dropping his FELA claim, why else would they mention it twice in the complaint that is based on a rules violation.
I for one will not be kicking cars or doing anything remotely close that may cause a car to go on the ground or that would even push the limits of the rules. From now on, if there is a question, the train stops and we resolve the issue before we move another inch, mainline or not. They've got me for 12 hours anyway. Of course the company would NEVER ask the I bend the rules to get a train down the line faster, that is unless they thought they wouldn't get caught. No more Jack, it will be strict compliance.
The hotlink is to a newspaper article and I have included the text of the Complaint.
http://www.desmoinesregister.com/apps/p ... 001/RSS013
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
BNSF RAILWAY COMPANY, Plaintiff,
v.
GARY D. CORDRAY, Defendant.
Civil No. 3:05-cv-00138
COMPLAINT
Plaintiff BNSF Railway Company (“BNSF”), for its complaint against Defendant Gary D. Cordray, ("Cordray") states:
Parties
1. BNSF is a Delaware corporation with its principal place of business in the State of Texas. At all times relevant herein, BNSF was engaged in business as a common carrier in interstate commerce through and between the several states.
2. Cordray is a resident and citizen of Fort Madison, Lee County, Iowa. It is expected that his attorney, Jerome Schlichter, 100 South Fourth, Suite 900, St. Louis, Missouri 63102, will accept service of this Complaint.
Jurisdiction and Venue
3. The Court has diversity jurisdiction of this action pursuant to 28 U.S.C. § 1332.
4. This action is between citizens of different states.
5. The amount in controversy, exclusive of interest and costs, exceeds Seventy-Five Thousand Dollars ($75,000.00).
6. Venue is proper in this District under 28 U.S.C. § 1391(a) as Cordray resides in this District and a substantial part of the events giving rise to this claim occurred in Fort Madison, Lee County, Iowa.
Factual Background
7. On November 10, 2005, Cordray, an engineer employed by BNSF, was operating three locomotives on a siding track at Fort Madison, Iowa.
8. Cordray passed a yellow approach signal in the siding, which required him to approach the next signal at the end of the siding prepared to stop.
9. The next signal at the end of the siding was red, which required him to stop short of the signal.
10. Cordray failed to stop at the red signal at the east end of the siding and he operated the train, without authority, on to the main line where it collided with an opposing train.
11. As a result of Cordray’s failure to obey the train signals, BNSF employees, including Cordray were injured and BNSF sustained extensive damage to its locomotives, train cars, trackage, lading, and road bed, and other property.
12. Within a short time of the collision, Cordray obtained counsel and made a claim for his injuries.
13. Upon information and belief, Cordray has not yet commenced an action under the Federal Employer’s Liability Act, 45 U.S.C. §51 (“FELA”) but is expected to assert such a claim as a counterclaim to this action.
COUNT I – NEGLIGENCE PER SE
1-13. BNSF incorporates paragraphs 1-13 of this Complaint as if set forth fully herein.
14. The Federal Railroad Administration has promulgated regulations to protect the safety of railroad employees, the safety of the traveling public, and property of railroads and others.
15. As they specifically apply to the operation of railroad locomotives and trains, the regulations provide in pertinent part that it is unlawful for an engineer to:
a. “[O]perate a locomotive or train past a signal indication … that requires a complete stop before passing it,” 49 C.F.R. §240.305(a)(1); and,
b. “[F]ail to comply with any mandatory directive concerning the movement of a locomotive or train by occupying main track or a segment of main track without proper authority or permission,” 49 C.F.R. §240.305(a)(5).
16. Obeyance of train signals is essential for the protection of the safety and lives of BNSF employees, the safety and lives of passengers on Amtrak trains and others in proximity to railroad tracks and the property of BNSF and others.
17. The failure of Cordray to control his train after the approach signal, and failure to stop at the red signal, was a violation of established operating rules and federal regulations.
18. Cordray’s failure to comply with the federal regulations in 49 C.F.R. §240.305(a)(1) and/or C.F.R. §240.305(a)(5) is negligence per se.
19. Cordray’s failure to comply with the federal regulations in 49 C.F.R. §240.305(a)(1) and/or C.F.R. §240.305(a)(5) was the proximate cause of the derailment and property damage which cannot yet be determined with certainty, but is estimated to exceed $2,000,000.
20. In the unlikely event that Cordray obtains an adverse FELA judgment against BNSF, BNSF claims credit and offset for any recovery obtained by Cordray in any Counterclaim under the FELA.
WHEREFORE, Plaintiff, BNSF Railway Company prays that judgment be entered in its favor and against Plaintiff Gary D. Cordray for the damages BNSF sustained; that BNSF be awarded both prejudgment and post-judgment interest at the highest rate allowed by law on any sums of money which are found to be due and owing to BNSF; that BNSF have credit and offset for any recovery obtained by Cordray under the FELA; that BNSF be awarded its costs; and that BNSF have such other and further relief as may be just and equitable.
COUNT II – NEGLIGENCE
1-13. BNSF incorporates paragraphs 1-13 of this Complaint as if set forth fully herein.
14. Cordray was negligent in, but not limited to, the following particulars:
a. In operating the BNSF train at an excessive speed;
b. In failing to maintain an adequate lookout;
c. In failing to maintain the BNSF train under reasonable control;
d. In disregarding traffic control signals regarding the operation of the BNSF train;
e. In failing to comply with 49 C.F.R. 240.305(a)(1) and (5) which states that it unlawful for an engineer to:
"(1) operate a locomotive or train past a signal indication . . . that requires a complete stop before passing it."
"(5) "fail to comply with any mandatory directive concerning the movement of a locomotive or train by occupying main track or a segment of main track without proper authority or permission."
f. Such other acts as may be determined during the progress of discovery or trial.
15. Cordray’s negligence, as set forth above, was the proximate cause of damage to BNSF in an amount expected to exceed $2,000,000.
16. In the unlikely event that Cordray obtains an adverse FELA judgment against BNSF, BNSF claims credit and offset for any recovery obtained by Cordray in any Counterclaim under the FELA.
WHEREFORE, Plaintiff, BNSF Railway Company prays that judgment be entered in its favor and against Plaintiff Gary D. Cordray for the damages BNSF sustained; that BNSF be awarded both prejudgment and post-judgment interest at the highest rate allowed by law on any sums of money which are found to be due and owing to BNSF; that BNSF have credit and offset for any recovery obtained by Cordray under the FELA; that BNSF be awarded its costs; and that BNSF have such other and further relief as may be just and equitable.
Respectfully submitted,
/s/ Michael W. Thrall
NYEMASTER, GOOD, WEST,
HANSELL & O'BRIEN
700 Walnut, Suite 1600
Des Moines, Iowa 50309
Phone: 515-283-3189
Fax: 515-283-8045
E-mail: [email protected]
Douglas W. Poole
Texas State Bar No. 16115600
McLEOD, ALEXANDER, POWEL & APFFEL,
A Professional Corporation
802 Rosenberg – P.O. Box 629
Galveston, Texas 77553
Phone: 409-763-2481, Ext. 116
Fax: 409-762-1155
E-mail: [email protected]
ATTORNEYS FOR PLAINTIFF,
BNSF RAILWAY COMPANY
As a result of an accident for allegedly involving running a red signal, BNSF has sued the engineer, not the engineer and conductor, but the engineer only for damages. They sued him personally, not in his capacity as an employee. From the looks fo the suit, the company is attempting to strongarm the engineer from dropping his FELA claim, why else would they mention it twice in the complaint that is based on a rules violation.
I for one will not be kicking cars or doing anything remotely close that may cause a car to go on the ground or that would even push the limits of the rules. From now on, if there is a question, the train stops and we resolve the issue before we move another inch, mainline or not. They've got me for 12 hours anyway. Of course the company would NEVER ask the I bend the rules to get a train down the line faster, that is unless they thought they wouldn't get caught. No more Jack, it will be strict compliance.
The hotlink is to a newspaper article and I have included the text of the Complaint.
http://www.desmoinesregister.com/apps/p ... 001/RSS013
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
BNSF RAILWAY COMPANY, Plaintiff,
v.
GARY D. CORDRAY, Defendant.
Civil No. 3:05-cv-00138
COMPLAINT
Plaintiff BNSF Railway Company (“BNSF”), for its complaint against Defendant Gary D. Cordray, ("Cordray") states:
Parties
1. BNSF is a Delaware corporation with its principal place of business in the State of Texas. At all times relevant herein, BNSF was engaged in business as a common carrier in interstate commerce through and between the several states.
2. Cordray is a resident and citizen of Fort Madison, Lee County, Iowa. It is expected that his attorney, Jerome Schlichter, 100 South Fourth, Suite 900, St. Louis, Missouri 63102, will accept service of this Complaint.
Jurisdiction and Venue
3. The Court has diversity jurisdiction of this action pursuant to 28 U.S.C. § 1332.
4. This action is between citizens of different states.
5. The amount in controversy, exclusive of interest and costs, exceeds Seventy-Five Thousand Dollars ($75,000.00).
6. Venue is proper in this District under 28 U.S.C. § 1391(a) as Cordray resides in this District and a substantial part of the events giving rise to this claim occurred in Fort Madison, Lee County, Iowa.
Factual Background
7. On November 10, 2005, Cordray, an engineer employed by BNSF, was operating three locomotives on a siding track at Fort Madison, Iowa.
8. Cordray passed a yellow approach signal in the siding, which required him to approach the next signal at the end of the siding prepared to stop.
9. The next signal at the end of the siding was red, which required him to stop short of the signal.
10. Cordray failed to stop at the red signal at the east end of the siding and he operated the train, without authority, on to the main line where it collided with an opposing train.
11. As a result of Cordray’s failure to obey the train signals, BNSF employees, including Cordray were injured and BNSF sustained extensive damage to its locomotives, train cars, trackage, lading, and road bed, and other property.
12. Within a short time of the collision, Cordray obtained counsel and made a claim for his injuries.
13. Upon information and belief, Cordray has not yet commenced an action under the Federal Employer’s Liability Act, 45 U.S.C. §51 (“FELA”) but is expected to assert such a claim as a counterclaim to this action.
COUNT I – NEGLIGENCE PER SE
1-13. BNSF incorporates paragraphs 1-13 of this Complaint as if set forth fully herein.
14. The Federal Railroad Administration has promulgated regulations to protect the safety of railroad employees, the safety of the traveling public, and property of railroads and others.
15. As they specifically apply to the operation of railroad locomotives and trains, the regulations provide in pertinent part that it is unlawful for an engineer to:
a. “[O]perate a locomotive or train past a signal indication … that requires a complete stop before passing it,” 49 C.F.R. §240.305(a)(1); and,
b. “[F]ail to comply with any mandatory directive concerning the movement of a locomotive or train by occupying main track or a segment of main track without proper authority or permission,” 49 C.F.R. §240.305(a)(5).
16. Obeyance of train signals is essential for the protection of the safety and lives of BNSF employees, the safety and lives of passengers on Amtrak trains and others in proximity to railroad tracks and the property of BNSF and others.
17. The failure of Cordray to control his train after the approach signal, and failure to stop at the red signal, was a violation of established operating rules and federal regulations.
18. Cordray’s failure to comply with the federal regulations in 49 C.F.R. §240.305(a)(1) and/or C.F.R. §240.305(a)(5) is negligence per se.
19. Cordray’s failure to comply with the federal regulations in 49 C.F.R. §240.305(a)(1) and/or C.F.R. §240.305(a)(5) was the proximate cause of the derailment and property damage which cannot yet be determined with certainty, but is estimated to exceed $2,000,000.
20. In the unlikely event that Cordray obtains an adverse FELA judgment against BNSF, BNSF claims credit and offset for any recovery obtained by Cordray in any Counterclaim under the FELA.
WHEREFORE, Plaintiff, BNSF Railway Company prays that judgment be entered in its favor and against Plaintiff Gary D. Cordray for the damages BNSF sustained; that BNSF be awarded both prejudgment and post-judgment interest at the highest rate allowed by law on any sums of money which are found to be due and owing to BNSF; that BNSF have credit and offset for any recovery obtained by Cordray under the FELA; that BNSF be awarded its costs; and that BNSF have such other and further relief as may be just and equitable.
COUNT II – NEGLIGENCE
1-13. BNSF incorporates paragraphs 1-13 of this Complaint as if set forth fully herein.
14. Cordray was negligent in, but not limited to, the following particulars:
a. In operating the BNSF train at an excessive speed;
b. In failing to maintain an adequate lookout;
c. In failing to maintain the BNSF train under reasonable control;
d. In disregarding traffic control signals regarding the operation of the BNSF train;
e. In failing to comply with 49 C.F.R. 240.305(a)(1) and (5) which states that it unlawful for an engineer to:
"(1) operate a locomotive or train past a signal indication . . . that requires a complete stop before passing it."
"(5) "fail to comply with any mandatory directive concerning the movement of a locomotive or train by occupying main track or a segment of main track without proper authority or permission."
f. Such other acts as may be determined during the progress of discovery or trial.
15. Cordray’s negligence, as set forth above, was the proximate cause of damage to BNSF in an amount expected to exceed $2,000,000.
16. In the unlikely event that Cordray obtains an adverse FELA judgment against BNSF, BNSF claims credit and offset for any recovery obtained by Cordray in any Counterclaim under the FELA.
WHEREFORE, Plaintiff, BNSF Railway Company prays that judgment be entered in its favor and against Plaintiff Gary D. Cordray for the damages BNSF sustained; that BNSF be awarded both prejudgment and post-judgment interest at the highest rate allowed by law on any sums of money which are found to be due and owing to BNSF; that BNSF have credit and offset for any recovery obtained by Cordray under the FELA; that BNSF be awarded its costs; and that BNSF have such other and further relief as may be just and equitable.
Respectfully submitted,
/s/ Michael W. Thrall
NYEMASTER, GOOD, WEST,
HANSELL & O'BRIEN
700 Walnut, Suite 1600
Des Moines, Iowa 50309
Phone: 515-283-3189
Fax: 515-283-8045
E-mail: [email protected]
Douglas W. Poole
Texas State Bar No. 16115600
McLEOD, ALEXANDER, POWEL & APFFEL,
A Professional Corporation
802 Rosenberg – P.O. Box 629
Galveston, Texas 77553
Phone: 409-763-2481, Ext. 116
Fax: 409-762-1155
E-mail: [email protected]
ATTORNEYS FOR PLAINTIFF,
BNSF RAILWAY COMPANY
