Train conductor wins jury trial over crash

Missouri Lawyers Weekly, Verdicts & Settlements
by Rebecca Boyle

Woman took convenience store job after collision.

A train conductor whose locomotive collided with a semitrailer won a $1.75 million verdict from a rural Oklahoma jury to compensate for her injuries and lost wages.

The plaintiff's lawyers say the case was unusual because the semitrailer driver had a previously undiagnosed heart condition, but the attorneys were able through document review that he was awake and aware at the time of the collision.

On March 2, 2009, Terri Smith was operating a Union Pacific Railroad Co. freight train between the towns of Minco and Pocasset, Okla. She was seated on the left side of the locomotive cabin, which does not have seat belts. At the same time, Vernon Bruce, a semitrailer driver for Hamm & Phillips Service Co., was hauling a 10,000-gallon tanker of saltwater, waste left over from oil drilling operations. The trailer blocked a train crossing that lacked gates or signals.

Smith and the engineer couldn't stop the train, which collided with the truck and derailed. Smith was thrown from her seat, said her attorney, Nelson Wolff.

Her most significant was a herniated disc, which required removal and the fusion of two vertebrae, he said.

"That limits her ability to withstand the vibration that is experienced inside this diesel locomotive, which vibrates a lot as it is hauling these mile-and-a-half long trains," said Wolff, of Schlichter Bogard & Denton in St. Louis.

Smith initially sued Union Pacific, Bruce, Hamm & Phillips and its insurer, Liberty Mutual, claiming violations of the Federal Employers Liability Act, the federal Locomotion Inspection Act and motor vehicle negligence. Ultimately, she dismissed the railroad and Bruce, and the trial progressed against Hamm & Phillips and Liberty Mutual.

Bruce suffered only minor injuries, Wolff Said. After the collision, he told police that he fainted while driving, never saw the train and didn't know what happened. Following his statement, he was sent to his family doctor, who diagnosed a cardiac arrhythmia, or irregular heartbeat. The condition can cause fainting spells, and it would be an absolute defense for negligence, Wolff said. But he and his co-counsel, Jason Kelly, thought it was too good to be true, Wolff said.

"The train would have been visible for 15 to 20 seconds. He is claiming that he lost consciousness and kept the tractor-trailer on the roadway for 15 seconds, and managed to go over the center of the crossing," Wolff said. "What we really think is that he wasn't looking and wasn't attentive."

Ian Faria, the Houston-based lead defense counsel, didn't return a phone message seeking comment. Nor did Houston attorney David Plavnicky. Stephen Palmer, and Oklahoma City attorney also involved in the case, deferred questions to Faria.

Wolff said that he discovered during depositions that Hamm & Phillips employees interviewed Bruce and other witnesses the night of the wreck but didn;t immediately disclose the interview records. Wolff found a statement by Bruce in which he told the company's safety director that he was sick before the collision and may have not fully recovered by then.

"He later claimed that he thought he had seen the train, and that he had cleared the crossing," Wolff said. "He disputed making those statements, and the safety director had to admit that was her handwriting."

The defense also argued that Smith, 39 at the time of the crash, could have returned to her job, Wolff said. Other railroad employees have had back surgery and returned to work, they argued.

Alternatively, if she couldn't continue as a conductor, she could have found other employment with the railroad, they said.

The defense also argued that an employee with a five-year work history wasn't entitled to a lifetime of lost earnings, Wolff said.

"We predicted that she would work 25 years, and they said that was too long," he said. "It's pretty uncommon to get a verdict that is substantial for somebody that has such a short work history with their employer."

The parties tried the case in Smith's hometown of Chickasha, Okla. Wolff said he learned that it was also the hometown of Leslee Holliday, wife of St. Louis Cardinals left fielder Matt Holliday.

"That was a good entrée to the jury," Wolff quipped.

The trial lasted a week. After two hours of deliberations, the jury returned a $1.75 million verdict. The judgment already has been satisfied for $1.93 million, including interest and court costs, Wolff said. Wolff said he was told it marked the largest-ever jury verdict in Grady County, Okla.

"It's a very conservative area; juries around there just don't give that kind of money," he said. "I think they liked her; she was a hard worker, and they thought she had been reasonable by finding alternative employment already, so she wasn't just looking for a handout."
  

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