When Railroads Blame the Victim and Deny Clear Evidence of Safety Violations, Hire a FELA Attorney

Posted on Sep 05, 2021

Having advised and represented injured railroad workers in lawsuits against rail corporations since 1985, few developments in Federal Employer Liability Act (FELA) cases surprise me. One shock will always stand out, however.

The case was not actually handled by our Virginia-based personal injury and wrongful death law firm. Rather, my professional colleague from Philadelphia, Michael Olley, represented the permanently disabled Norfolk Southern employee. The details remain etched into my brain because of the outlandish lengths the freight railroad went to deny their hero employee fair and just compensation.

Sacrificing Both Feet to Avert a Catastrophe

The rail yard accident unfolded in stages, with one preventable and avoidable error leading to the next until a 45-year-old brakeman suffered multiple amputations.

The brakeman was helping an engineer shove tanker cars. Performing his part of the job required standing at the end of the siding and counting cars. Problems began when someone failed to couple the last two of the five cars in the line. That oversight was compounded when the engineer failed to pull forward a short distance (i.e., “stretch” the train) to confirm the coupling of each car before backing toward the siding.

The brakeman spotted the uncoupled cars and radioed the engineer to stop the train before a collision occurred. A crash could have been disastrous because some of the tanks had recently carried chlorine gas. A puncture of one or more of those tanks could kill many people in the area and badly damage the throats and lungs of even more people.

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The engineer did not stop, so the brakeman boarded the fourth in the line to attempt to apply the hand brake. Reaching the brake required moving from ladder to ladder along the rail car. During one transfer, the brakeman caught and trapped his hand between two defective rungs. This caused him to lose his balance and fall under the moving tanker car.

The accident cost the brakeman his left foot and the toes on his right foot, which were sliced off by the turning wheels. Several surgeries and skin grafts saved his right foot, but he needed a prosthetic device for his left leg.

A Blame the Victim Defense Fails

Norfolk Southern fought the brakeman’s FELA claims strenuously. The company argued their former employee caused his own injuries by violating work rules concerning the boarding of moving rail cars. Norfolk Southern also denied being negligent in maintaining the ladder with the broken rung.

The company did not intend to compensate the brakeman at all. Fortunately, the brakeman and his FELA attorney were able to document violations of the Safety Appliance Act. Testimony taken from the brakeman’s coworkers also substantiated his account of the accident.

Norfolk Southern eventually agreed to mediation in an attempt to avoid going to court. That process led to a settlement of all claims in return for a payment of $5.5 million to the permanently disable brakeman.

Holding Negligent Railroads Accountable Is Possible

It did not matter to Norfolk Southern that their former employer sacrificed parts of his body in an effort to avert a greater disaster. Nor did it matter to the company that evidence existed to show it put the brakeman and countless other workers at risk by failing to ensure a ladder’s rung were in proper repair.

Wanting to save money, the company attacked a man who suffered catastrophic work-related injuries while attempting to spare others from harm. Questions about the brakeman’s competence and motives persisted right up until the mediated settlement was reached.

The ways in which this case progressed and concluded highlight the need for railroad employees who suffer injuries on the job to consult with and hire experienced FELA attorneys. An accident can happen at any time and in an unforeseen way.

The rail corporation will try just about any tacit to deny compensation, up to and including criticizing heroic actions. Enlisting the advice and assistance of a legal ally who knows the applicable regulations greatly increases the chances for securing an injury settlement or winning a jury award.

Succeeding with a FELA claim often requires conducting extensive researching, identifying and interviewing numerous witnesses and hiring outside experts to analyze documents and equipment. An attorney who has handling many railroad injury cases will know how to do the research, conduct the depositions and hire the appropriate experts.

EJL

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia