Court rules against railroad that struck Detroit-area teen

[Sean N]

https://www.msn.com/en-us/news/crime/co ... hp&pc=U531

WYANDOTTE, Mich. (AP) — The Michigan Court of Appeals reinstated a lawsuit against a railroad, 10 years after a teen listening to music was struck by a train and severely injured in suburban Detroit.

The court said a judge misinterpreted a case from 1899 and made other incorrect conclusions while ruling in favor of Grand Trunk Western Railroad.

Jacob Marion, who was 14 at the time, was struck by a train as he walked down tracks while wearing headphones in Wyandotte in 2012.

The conductor and engineer saw the boy and sounded a horn, but the train's emergency brake wasn't activated in time to avoid the collision, according to the appeals court's summary of the event.

Judge Annette Berry applied a case from the 19th century, in which a deaf person was struck by a railroad hand car, and said train operators tried to alert Jacob but he didn't respond.

But the appeals court, among other things, said tort law has come a long way since 1899. The lawsuit now will return to Wayne County court.

“A reasonable jury could conclude that defendants had Jacob in plain sight and recognized his peril for a period of time sufficient to react so as not to strike him,” Judge Elizabeth Gleicher wrote last week.

[justalurker66]

“A reasonable jury could conclude that defendants had Jacob in plain sight and recognized his peril for a period of time sufficient to react so as not to strike him,” Judge Elizabeth Gleicher wrote last week.

Wow. I suppose the judge believes physics isn't reasonable for a jury. I assume that the railroad will have sufficient experts to explain that trains can't stop as fast as a car or even a semi-truck. And a train cannot swerve to avoid impact. Sufficient time to react is minimal when a train is operating at a speed where braking distance exceeds sight distance. If the railroad loses this case it effectively requires restricted speed on all tracks just in case a trespasser is present.

The train was traveling 28 MPH at the time.
https://patch.com/michigan/wyandotte/wy ... k-by-train

It appears Jacob died a month ago ... just shy of 10 years after the incident.

[R Bedell]

Judge Annette Berry

Have to remember that name.

[J T]

“A reasonable jury could conclude that defendants had Jacob in plain sight and recognized his peril for a period of time sufficient to react so as not to strike him,” Judge Elizabeth Gleicher wrote last week.

Wow. I suppose the judge believes physics isn't reasonable for a jury. I assume that the railroad will have sufficient experts to explain that trains can't stop as fast as a car or even a semi-truck. And a train cannot swerve to avoid impact. Sufficient time to react is minimal when a train is operating at a speed where braking distance exceeds sight distance. If the railroad loses this case it effectively requires restricted speed on all tracks just in case a trespasser is present.

There's also a reasonable assumption that the person walking on the tracks will move out of the way of an oncoming train. Should an engineer throw the train into emergency every time a person is spotted on the tracks a hundred yards away? An 1/8 of a mile away? 1/4? 1/2? What should be the distance threshold of when a train is thrown into emergency after an engineer has realized the pedestrian can't hear it coming?

[Steve B]

Regardless of if the railroad can claim it wouldn't have been able to stop in time, it's not a good look when it wasn't put into emergency (or wasn't put into it fast enough, the article wasn't clear). The litigants can then say that not every tool to avoid the strike was taken. I'm not saying they're correct, but it's just the reality. We'll see which side's lawyers present the most compelling argument.

[David Collins]

Unbelievably I believe the GTW could still be sued since they're "a company on paper"

[Steve B]

Judge Annette Berry

Have to remember that name.

? She was the judge who originally said CN wasn't at fault.

[Steve B]

Unbelievably I believe the GTW could still be sued since they're "a company on paper"

Still technically the owner. Some of the MOW trucks say "Operated by Grand Trunk Western" on the cab.

[SD80MAC]

Unbelievably I believe the GTW could still be sued since they're "a company on paper"

Still technically the owner. Some of the MOW trucks say "Operated by Grand Trunk Western" on the cab.

Many newer CN locomotives have Grand Trunk Western listed as the owner on their blue cards, too.

[DaveO]

Yes, GTW exists, it has to.
CN is a Canadian Corporation, previously a Crown Corporation meaning owned by Canadian Government.
For all the various legal reasons, their USA operations have always needed an American subsidiary in place.

The Appeals Court sent it back because of a legal technical reason.
No legal judgement of guilt was imposed on the railroad.
Just means a new or resumed trial must occur.

[GTW Dude]

I figure now is the best time to ask but given the GTW’s mark as a “subsidiary” does that mean the GTW is one big tax write off by the Canadian Government? (Along with DW&P and CV and Grand Trunk) would this be the reason the railroad wasn’t totally consolidated by CN in the 90’s and why it still exists as a railroad on paper in order to still receive tax cuts?

[DaveO]

I stated CN is a Canadian Corporation, PREVIOUSLY a Crown Corporation.
You would also need to include in your list, the other USA companies that CN has acquired under public ownership.
It has nothing to do with tax cuts and all to do with international business ownership.
CN, a Canadian company, can't consolidate with the USA subsidiaries.

[chapmaja]

I stated CN is a Canadian Corporation, PREVIOUSLY a Crown Corporation.
You would also need to include in your list, the other USA companies that CN has acquired under public ownership.
It has nothing to do with tax cuts and all to do with international business ownership.
CN, a Canadian company, can't consolidate with the USA subsidiaries.

I believe now they can technically consolidate with USA Subsidiaries. The issue previously was that they were a crown corporation and as such they were very limited on what they could own within the United States. Under the current laws, I do believe that CN could in fact merge all operations into one company without any legal ramifications.

I think the tax situation absolutely does play a part in why companies don't merge all their operations into one company crossing the border. One thing to consider is the corporate tax rate. Canada's is 26.47%, while the United States is 25.75%. That slight difference makes a big difference when it comes to billions of dollars in taxable revenue. Additionally, I'm sure the tax write-offs are difference between the countries, meaning what you are allowed to deduct in the USA might not be allowed as a deduction in Canada. For this reason, you want to keep as much of the accounting on the same side of the border.

If they were to consolidate across the border you would likely have so much additional paperwork to be filed that you would lose any benefit to said consolidation simply due to the additional staff having to deal with said paperwork.

CN/GTW et al., can all be operated under the same umbrella while being difference companies from a taxation standpoint. It is not uncommon for smaller international companies to have the same upper management for business operations in multiple countries.

[chapmaja]

If you actually read the case information, and don't just go by the news reports, it appears the plaintiffs may actually have a fairly solid case against the railroad and the crew on board that day as it related to the action facing the Court of Appeals.

What is now going to be interesting is the idea of gross negligence and contributory negligence. The victims attorneys will have to prove the railroad and employees were grossly negligent in their operation of the train. To do this, the words of the engineer, and the information from the data recorder will be critical.

What is known is that the crew realized before the Oak St. crossing that the teen was not responding to the horn. What is also known is that they talked about him not responding before the crossing. This is evidence based on the testimony given by the engineer under oath.

What is also known is the distance the train covered from when the train was put into emergency and when it stopped, 719.5 feet.

What the jury will now be forced to decide is when the train crew has a legal duty to put the train into emergency based on seeing someone in the middle of the tracks. This will be the stickiest situation of all. This will be the part that could have a massive impact on the entire industry if the jury were to say something like when they see someone they should put the train into emergency (which won't happen in my opinion). This will be the gross negligence portion of the case. If they are deemed to immediately have to put the train in emergency upon seeing someone not react, this would likely be considered gross negligence by the crew, making moot the second issue.

The second issue, if the jury does not deem the actions of the railroad or crew to be gross negligence, is contributor negligence. This is where two factors become hugely important. One, the fact the victim was walking down the middle of the tracks, and two the distance the train took to stop. I think it would be hard for a jury to say that the majority contributing factor to this incident was something other than the fact the victim was walking down the middle of the tracks.

I personally, after reading the ruling, have no problem with this case being remanded to the lower court. I also feel that this case is going to either result in a settlement by CN/GTW/crew or a victory for the railroad and crew.

[joeyuboats]

Maybe I am old, and missing something, but wasn't the kid trespassing in the first place???

[AARR]

This is how I see it too.

Maybe I am old, and missing something, but wasn't the kid trespassing in the first place???

[Chip]

Maybe I am old, and missing something, but wasn't the kid trespassing in the first place???

Yes. It's a huge problem in that area with Wyandotte high school being right next to the tracks. City cops will stop people walking along the tracks around there.

[David Collins]

Maybe I am old, and missing something, but wasn't the kid trespassing in the first place???

Yes. It's a huge problem in that area with Wyandotte high school being right next to the tracks. City cops will stop people walking along the tracks around there.

Seems to be a huge problem here with east hills middle school being next to the tracks and they don’t give a crap about it

[Chip]

Wyandotte cops are pretty tough. I had a few run-ins with them when I was younger for walking across the pedestrian bridge there. A buddy and I stopped on the bridge for a few minutes for a cigarette and we had 3 cars pull up on us like 5 minutes later.

[chapmaja]

Maybe I am old, and missing something, but wasn't the kid trespassing in the first place???

That is where the gross negligence issue comes in. Generally the courts have held that is a defendant is grossly negligent, even someone illegally on a property can win a lawsuit against the defendant. Even someone illegally on a property does have some right to not be harmed by the actions of the defendant. If the courts rule gross negligence, then this is likely a win for the plaintiff, even if his trespassing contributed to his injuries. If the court, or jury does not deem the actions of the railroad and crew to be grossly negligent, then they will have to factor in contributory negligence. Basically what percentage of the blame falls on the plaintiff and what falls on the defendant when making a decision. This is where the trespassing becomes very important. I find it hard to think a jury would not find someone trespassing while wearing headphones walking between the railroad tracks was substantially more than 50% the cause of his or her injuries.