Train that de­railed was un­safe, say 2 em­ploy­ees sued, blamed by rail­road

Lexington Herald-Leader - - Bluegrass - BY GREG KOCHER [email protected]­ald-leader.com

The en­gi­neer and con­duc­tor of a train that de­railed in Ge­orge­town last year say Nor­folk South­ern Rail­way knew a lo­co­mo­tive “was not in proper con­di­tion” be­fore the crash with an­other train.

Nor­folk South­ern sued en­gi­neer Kevin Tobergte of Fort Thomas and con­duc­tor An­drew Hall of Fort Mitchell in fed­eral court last year. The rail­road claimed the two em­ploy­ees were li­able for dam­ages and neg­li­gent in their op­er­a­tion of south­bound train No. 175 that crashed into a stopped north­bound train on March 18.

The crash de­stroyed two lo­co­mo­tives, caused the de­rail­ment of 13 cars, started a fire, forced a tem­po­rary evac­u­a­tion and sent four peo­ple to the hos­pi­tal as a pre­cau­tion. Nor­folk South­ern re­ported to the Fed­eral Rail­road Ad­min­is­tra­tion that it sus­tained $3.7 mil­lion in dam­ages as a re­sult of the ac­ci­dent.

But Tobergte and Hall say in sep­a­rate coun­ter­claims filed last month that it was Nor­folk South­ern who was neg­li­gent. A Nor­folk South­ern spokes­woman had no com­ment on the coun­ter­claims.

The two em­ploy­ees were as­signed to take the train from Sharonsville, Ohio, to Burn­side, Ky. Tobergte and Hall say the lead lo­co­mo­tive on the trip was not equipped with “pos­i­tive train con­trol” tech­nol­ogy.

Pos­i­tive train con­trol is an ad­vanced sys­tem de­signed to au­to­mat­i­cally stop a train be­fore cer­tain ac­ci­dents oc­cur, par­tic­u­larly train-to-train col­li­sions. Hall said the col­li­sion would not have hap­pened if the tech­nol­ogy had been avail­able and op­er­at­ing on this trip.

Hall’s coun­ter­claim said he ac­ti­vated an emer­gency brake but saw the light of the stopped north­bound train and re­al­ized that a col­li­sion was im­mi­nent.

Hall “feared for his life and tried to per­suade Mr. Tobergte that they needed to flee the train,” the coun­ter­claim says. “Sec­onds be­fore the col­li­sion, Mr. Hall fled the op­er­at­ing com­part­ment, scram­bled off the lo­co­mo­tive and started run­ning. He heard the colli-

sion and thought the de­rail­ing train was go­ing to crush him.”

Hall had scraped and bruised legs and knees. His coun­ter­claim says he “suf­fered and con­tin­ues to suf­fer se­vere and dis­abling post-trau­matic stress and emo­tional harm.”

Hall said Nor­folk South­ern un­der­stood that he lacked the fi­nan­cial re­sources to pay the dam­ages it claims to have sus­tained and that he would be forced to de­clare bank­ruptcy should a judg­ment be en­tered against him.

The coun­ter­claim said the rail­road pulled Hall out of ser­vice af­ter the col­li­sion and he has had no rail­road in­come since that time.

“Thus, Nor­folk South­ern knew that the law­suit it filed against Mr. Hall would not re­sult in it re­cov­er­ing any money from him,” the coun­ter­claim says.

En­gi­neer Tobergte al­leges Nor­folk South­ern vi­o­lated the fed­eral Lo­co­mo­tive In­spec­tion Act by per­mit­ting “the use of lo­co­mo­tives on its lines which were not in proper con­di­tion and safe to op­er­ate.”

The rail­road also per­mit­ted “the use of lo­co­mo­tives ... that were not free of con­di­tions that en­dan­gered the safety of the crew.”

Tobergte says that as a re­sult of the ac­ci­dent he “suf­fered in­juries and/or ag­gra­vated a pre-ex­ist­ing con­di­tion to his back, ribs, lungs and the de­vel­op­ment of post-trau­matic stress syn­drome.”

Hall and Tobergte each seek a jury trial and a judg­ment against the rail­road for dam­ages and losses suf­fered in ex­cess of $75,000.

In its suit last year, Nor­folk South­ern said Hall and Tobergte failed “to pay at­ten­tion to their du­ties,” failed to prop­erly con­trol the move­ment and speed re­duc­tion, and failed to an­nounce to a dis­patcher that they had ap­plied an emer­gency brake so that “other trains in the vicin­ity could be no­ti­fied of the event.”

The com­pany’s suit said the two men were li­able for dam­ages to the rail­way’s prop­erty, in­clud­ing lo­co­mo­tives; rail cars; tracks; right of way; and com­mu­ni­ca­tions and sig­nal equip­ment.

RON GAR­RI­SON rgar­ri­[email protected]­ald-leader.com

Nor­folk South­ern Rail­way sued two crew mem­bers it blamed for the March 18 wreck in which two trains crashed and spilled cars side­ways across tracks and on nearby hills in Scott County. The em­ploy­ees have now coun­ter­sued the rail­road.

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