Midland, Texas case against UP dismissed or: "Look At This Idiot"

[wanswheel]

jeffhergert

Could the video in question be one of a post accident debriefing? 

It seems not.

Excerpt from the Odessa American

http://www.oaoa.com/news/article_7e185f6c-b23c-11e4-938a-8f9c5fc6e8e5.html?mode=jqm

“When the engineer saw that first float, he said, ‘Look at this idiot,’ ” Stouffer family attorney Brent Walker said during a pretrial hearing. He noted that the engineer and conductor both watched as the float crossed the tracks before the float that would ultimately be hit crossed the tracks.

However, when the issue came up in court, Union Pacific attorneys objected to video from the train being shown to the jury...

Excerpt from KOSA-TV, Odessa

http://cbs7.com/news/article_b847bf5e-a6ff-11e4-82f1-67dcee54df18.html

Opening arguments began with David Grigg representing widows of the veteran who passed away.

He spoke about Union Pacific using the emergency break and how the engineer, Simon Terrazas didn't pull it with enough time to stop. They broke down numbers leading up to the crash. Grigg said Terrazas saw the trailer cross the tracks about 27 seconds before hitting the vehicle because Terrazas said in train footage, "look at that idiot, can you believe this?" ...

[jeffhergert]

mikeyuhas

Perhaps railroaders on this forum can answer this. In the past, locomotive video recorders had been reported to be configured such that audio was  captured along with the video, but that the microphone was external, to record sounds of the bell and whistle (and crash)... not the sounds of the crewmembers talking. The reports about the evidence of one crewmember calling the parade float driver an idiot seems to contradict that idea. So the question - do outward-facing locomotive cameras today routinely record audio from inside the cab?

 

No they don't.  The outside microphone can record conversations that take place outside of the cab, such as talk between crews when changing out.  I suppose it's possible for inside voices to be recorded if they were loud enough and the train was stopped.  I really doubt that ordinary conversations while the train was moving would be caught on tape, and even if they were I would guess they would be unintelligible.

Inward facing cameras on the UP are rare, for now.  While capable for recording audio, they aren't supposed to be set up to do that.  Maybe if the video is from an inward camera, they were lip reading the engineer. 

Could the video in question be one of a post accident debriefing?  Either done by the railroad on purpose or caught be a news camera (or someone with a phone) by accident.

Jeff

[wanswheel]

Pretty sure the settlement is secure, because it was the first of two separate lawsuits, and no longer connected to the second lawsuit, the one that came to trial.

http://www.oaoa.com/news/article_550ab6da-ae57-11e4-be97-c795d9621741.html

http://www.mysanantonio.com/news/local_news/article/Second-lawsuit-filed-in-fatal-Midland-train-crash-4150014.php

[ramrod]

This dismissal has an interesting ramification. The settlement of the action brought by 26 (I think) survivors and family members which was announced a couple of weeks ago is still awaiting approval by the court. This dismissal could lead to orders: by the court.

            1. The court could disapprove the settlement and direct a settlement, clearing UP. 

            2. The court could delay any action on the settlement until the appeal of the dismissal is finalized.

             3.The court could order a trial on the merits of the settlement, either in conjunction with a retrial of the dismissed case or independently.

 

            In any event, it ain’t over yet.

[tree68]

Euclid

The conclusion is based on this:  If you are looking at "A", you can't be looking at "B".

But I must clarify that this conclusion in this case is not my conclusion. I believe it is the conclusion of the attorney. 

On the other hand, if the engineer is looking at the first float going over the crossing, he's still paying attention to the crossing, which would be the appropriate thing to do.  

While assuming anything gets us in the usual trouble, one might assume that someone driving a semi, especially one loaded with people, would see and heed the crossing signals, thus not entering the crossing.  

The crewmember's comment would seem to indicate that he was incredulous that the first flatbed would foul the crossing as it did.  I'm sure that even stronger language (or thoughts) accompanied the discovery that the second semi then fouled the crossing.

[mikeyuhas]

Perhaps railroaders on this forum can answer this. In the past, locomotive video recorders had been reported to be configured such that audio was  captured along with the video, but that the microphone was external, to record sounds of the bell and whistle (and crash)... not the sounds of the crewmembers talking. The reports about the evidence of one crewmember calling the parade float driver an idiot seems to contradict that idea. So the question - do outward-facing locomotive cameras today routinely record audio from inside the cab?

[Euclid]

Norm,

The conclusion is based on this:  If you are looking at "A", you can't be looking at "B".

But I must clarify that this conclusion in this case is not my conclusion. I believe it is the conclusion of the attorney. 

[Norm48327]

Euclid

 

 

tree68

..."And the "look at that idiot" comment is a pretty good indication that the crew was paying attention...

 

 

 

I think their point is that the “Look at that idiot” comment does prove that the engineer was paying attention to the float.  It is believed that comment was directed to the first float because that float was on the crossing when the engineer made the comment.  So the conclusion is that since the engineer was paying attention to the first float, he could not have been paying attention to the second float.  It was the second float that they hit. 

 

 

I would sure like to know the mental process you used to reach that conclusion.

[Euclid]

tree68

..."And the "look at that idiot" comment is a pretty good indication that the crew was paying attention...

 

I think their point is that the “Look at that idiot” comment does prove that the engineer was paying attention to the float.  It is believed that comment was directed to the first float because that float was on the crossing when the engineer made the comment.  So the conclusion is that since the engineer was paying attention to the first float, he could not have been paying attention to the second float.  It was the second float that they hit. 

 

[samfp1943]

tree68

 

wanswheel

Excerpt from "Plaintiffs' Original Petition..."

 

 

Some of those would be FRA violations (and, I would opine, highly unlikely).  And many would be refutable just by pulling out the rulebook.

Several are wholly laughable, and 'd' ignores the laws of physics.  Not to mention a couple of duplicates, worded differently.

And the "look at that idiot" comment is a pretty good indication that the crew was paying attention...

 

  To what Mike (wanswheel) noted in his post:

c. In failing to provide a safe railroad crossing; (see note below)

d. In failing to apply the brakes or otherwise slow the train;  (Laws of Physica here apply)

e. In failing to keep a proper lookout; ( Train's Brakes do not automatically apply, unlike some systems in automobiles?)

Just three of the items mentioned are exactly as Larry(tree68) noted:

"...Some of those would be FRA violations (and, I would opine, highly unlikely).  And many would be refutable just by pulling out the rulebook..."

(c.) There have been didcussions on  Highway/Rail grade Crossings on a number of occasions in Threads on these Forums before.   A crossing is regulated by not only Federal (C.F.R.), but backed by State regulatory parameters as well. 

(H/R Crossings)They are funded by any number of involved local political entities; with each putting 'their stamp of approval,and compliances on those plans and their implementation.    The Funding is then established, and funds furnished to the involved railroad who (many times(?) pays for the equipment provided; builds the installation of the Active Crossing Mechanisms, and then is the maintaining entity, as long as the crossing is needed. (?) 

[samfp1943]

Deggesty

The lawyers who wrote that should be stripped of every diploma that was given to them, and disbarred for lack of evidence that they had any education.

 

 

     Too many Lawyers these days...Everyone looking for s "suit" to hang the rest of their lives on...Just look at the various Medical Mal-practice and " Bad Drug" actions that seem to happen..   Then, there are the various "Product-liability" actions for almost every item immaginable...  America (?) seems to have returned to a "Legal Wild West", and 'Gold Rush' mentality.  Lawyers like "49ers" are the new prospectors; everyone looking for their own pot of gold.   

Lawyers that can't make it practicing law seem to go into politics.. Maybe that is the new" Gold Rush" ? [my2c] 

[tree68]

wanswheel

Excerpt from "Plaintiffs' Original Petition..."

Some of those would be FRA violations (and, I would opine, highly unlikely).  And many would be refutable just by pulling out the rulebook.

Several are wholly laughable, and 'd' ignores the laws of physics.  Not to mention a couple of duplicates, worded differently.

And the "look at that idiot" comment is a pretty good indication that the crew was paying attention...

[JayPotter]

I read the two posts in which Deggesty discussed disbarrment of the plaintiffs' attorneys.  They left me with a hypothetical question that I want to ask him.

Deggesty, assume that this case ends up going to trial and you're called for jury duty in it.  And assume that, during the juror qualification process, the judge asks you if you would be able fairly and objectively to consider the evidence that's presented by both sides during the trial.  Would you tell the judge that you would be able to do this or that you would not be able to do this?

 

[ricktrains4824]

I find it funny that the plaintiffs are blaming the crossing signals not functioning correctly, when the NTSB stated that the issue was created by the parade planners.... Never will happen, but UP should sue the parade planners, the city, and countersue the plaintiffs attorney's, for I'm sure that the train crew also is suffering from "bad PTSD" as the one person stated. The NTSB blamed the parade planners for not doing their due diligence, so, I, for one, applaud the judge from this trial, for he clearly does not follow the "show me the money" thinking that is such a issue anymore.... Hopefully the appeals judge sees the same. The NTSB is not owned by any RR, Airline, automotive manufacturer, etc.... If the RR (UP) was at fault in any way, no matter how slight, the NTSB would have said so. They did not. Yes, it's sad that people got hurt, or died, but, the train crew is not to blame... Unless they had one of those new special "sneaky" trains that jump out of the bushes and attack you.... But, they did not. Yes, I feel bad for those victims. But I count as victims the train crew also. Blaming the victims, does zero good here. Otherwise, the people in the parade should have seen the "essentially local safety hazard" of the grade crossing, and not crossed it in the first place. They all could see, and unless they live on another planet, should be able to logically assume, that train tracks means train. Otherwise, there would not be tracks, or a grade crossing, present.

[Deggesty]

The lawyers who wrote that should be stripped of every diploma that was given to them, and disbarred for lack of evidence that they had any education.

[wanswheel]

Excerpt from "Plaintiffs' Original Petition..."

http://extras.mysanantonio.com/pdf/TrainWreck_Lawsuit_Petition.pdf

The occurrence described in this petition is a direct and proximate result of the negligence of Defendant Railroad:

a. In failing to provide a reasonable and timely audible warning of an approaching train;

b. In failing to provide a reasonable and timely visual warning of an approaching train;

c. In failing to provide a safe railroad crossing;

d. In failing to apply the brakes or otherwise slow the train;

e. In failing to keep a proper lookout;

f. In failing to remedy the hazardous conditions posed by this grade crossing that existed for an extended period of time;

g. In routinely ignoring the hazardous conditions posed by this grade crossing;

h. In failing to protect the crossing by issuing a slow order for rail traffic;

i. In failing to recognize that the conditions readily apparent at this crossing created “an essentially local safety hazard;”

j. In failing to properly train and instruct its crew;

k. In failing to properly maintain the railroad crossing;

l. In failing to work with State and local authorities to establish an open line of communication and in failing to engage in any effort to evaluate the crossing conditions and characteristics;

m. In failing to maintain adequate warning devices;

n. In failing to provide a sufficient warning;

o. In failing to implement effective Employee Notification Rules to Report Warning Signal Malfunctions;

p. In failing to timely investigate and determine the nature of the crossing signal malfunction of this grade crossing;

q. In failing to provide alternative means of warning highway traffic while crossing was malfunctioning;

r. In failing to promptly initiate efforts to warn highway users of a malfunction with the crossing;

s. In failing to notify the train crew of the activation failure at this crossing;

t. In failing to notify local law enforcement with jurisdiction over the crossing, of the need to respond and control vehicular traffic;

u. In failing to provide alternative means of actively warning highway users of approaching trains;

v. In failing to provide a flagger at this crossing;

w. In failing to slow trains or stop them prior to entering the crossing;

x. In failing to keep legible, correct signal system circuit plans at the crossing warning system location;

y. In failing to maintain the rail crossing warning system within the limits within which the system was designed to operate;

z. In failing to determine the failure of the crossing to perform its intended function and in failing to adjust, repair or replace the component without undue delay;

aa. In failing to maintain the railroad crossing to activate in accordance with the design of the warning system; and

bb. In failing to properly test the crossing warning system at least once every twelve months and to test any modifications to the system because of a change in train speed.

[tree68]

diningcar

The Brits have the solution: If you sue and lose you pay the other parties total costs of the litigation.

Amen.  If that was the case and someone sued me on some frivolous (or otherwise baseless) matter, I'd hire the most expensive lawyer I could.  Could come back and bite me, but they'd certainly feel the sting when they lost.

It would put an end to folks who are serial "suers."  Like the lady who sued over a basketball hoop (and the resultant dribbling of the ball) several houses from hers - and won.  It was one of many suits she initiated, most of which simply settled.  She was making pretty good money on the racket...

That's not to say that people who sue never have legitimate cases (oftimes they do), but I think that if one was to try to file a loser of a case, their lawyer might suggest what they stood to lose if they lost.

[samfp1943]

wanswheel

Discussion of the warning time was not allowed, I guess. Perhaps it would be in a retrial.

http://www.mysanantonio.com/news/local_news/article/Midland-warning-seen-as-too-brief-4074242.php

 

 

The Judge, probably also, banned any conversations about the Engineer or Conductor not steering the train out of the crossing to avoid the collision???

[diningcar]

The Brits have the solution: If you sue and loose you pay the other parties total costs of the litigation.

[NorthWest]

Perhaps the lawyers think that because the first float crossed the tracks, the train crew should have expected more floats and stopped the train?

[wanswheel]

Discussion of the warning time was not allowed, I guess. Perhaps it would be in a retrial.

http://www.mysanantonio.com/news/local_news/article/Midland-warning-seen-as-too-brief-4074242.php

[rdamon]

26 of 43 did settle ..

http://dfw.cbslocal.com/2015/01/16/26-settle-suit-in-2012-texas-veterans-parade-crash-that-killed-4/

[tree68]

All too often, plaintiffs (or their lawyers) go after the deep pockets - in this case, UP.  

And all too often, said deep pocket simply settles since it's cheaper than going to trial.  

In this case, UP felt they had the advantage and fought the claim.  And won.

Of course, the plaintiffs (or their attorneys) will appeal.  Hopefully said appeal will be summarily dismissed.

I'm certainly sorry for the loss of their loved ones, as are all involved.  

[rdamon]

BaltACD

I view the plaintiff lawyers theory as throwing a Hail Mary pass and hoping for a pass interference call - without ever expecting to have the pass completed or even having a receiver in the same zip code as the ball, and then hoping for his QB to get tackled after the pass was released when no defender was within 10 yards of the QB.

 

 

All at $500 per hour.

[BaltACD]

I view the plaintiff lawyers theory as throwing a Hail Mary pass and hoping for a pass interference call - without ever expecting to have the pass completed or even having a receiver in the same zip code as the ball, and then hoping for his QB to get tackled after the pass was released when no defender was within 10 yards of the QB.

[Euclid]

I am not sure if I understand the point here, but this is how I interpret it:

The plaintiff’s attorney contends that the train crew was distracted.  He bases that contention on the fact that the engineer said “Look at that idiot.”  The engineer was referring to the first float which made it across okay.  It was the second float that got hit by the train. 

So by referring to the first float driver as “that idiot,” it shows that the engineer was paying close attention to the first float, and therefore, could not have been paying attention to the second float. 

Is that the correct interpretation of the lawyer’s legal theory?  

[rrnut282]

Deg,

Oh, I'm sure someone, either the lawyers or the families thought, something along the lines of "show me the money".  It's just that they thought wrong.

 

At least the judge was thinking more clearly.

[wanswheel]

It’s not entirely over because the appeals court could decide for a retrial.

http://www.mrt.com/news/article_ea958166-afb1-11e4-9758-1325d2983868.html

[Deggesty]

I wonder: did the families of the men who died call on the "lawyer(s)", or did the "lawyer(s)" call on the families?

If the "lawyer(s)" began the suit, they should be disbarred for being unable to think.