Jurors say CSX not to blame for W.Va. goose incident

Chris Dickerson Jul. 21, 2009, 9:00pm

HUNTINGTON, W.Va. (Legal Newsline) -- It took a jury 25 minutes to decide CSX Transportation was not responsible for a conductor's injuries resulting from a railyard run-in with a goose.

Aaron E. Richards had filed a FELA lawsuit last year against CSX, claiming the rail giant was negligent in not removing the goose from its Keyser Receiving Yard near Ravenswood. Richards was injured April 23, 2005, at the yard when, as he was performing a brake test on a train, the goose startled him and knocked him backward.

On Tuesday before U.S. District Judge Robert C. Chambers, Richards' attorneys argued that CSX knew or should have known the goose was a hazard to its employees. CSX attorneys, meanwhile, said the company had no prior knowledge of the goose.

"Railroaders will tell you that when you're out on the tracks, you encounter wildlife," CSX attorney Marc Williams said during his opening remarks. "This was an accident that happened without the fault of anyone."

During Tuesday's testimony, Richards' attorney William Kvas outlined the details of the April 23, 2005, incident and ensuing events.

Richards was the conductor on a train from Huntington to Parkersburg. It stopped at the Keyser railyard to pick up some cars. It was rainy and just past midnight, so the unlit yard was especially dark. As Richards inspected the cars and performed a brake test on them, he heard a hissing noise.

"As I crouched down, it came up toward the side of my face," Richards testified. "It had its wings up. I fell backwards and twisted my ankle on the ties and debris."

After receiving help from his engineer, Richards was transported to Camden Clark Memorial Hospital in Parkersburg. Shortly thereafter, CSX managers Wayne Queen and Robert Henderson arrived at the hospital to visit Richards.

As with any incident, Richards filled out a report. One part of that form that Williams repeatedly noted to jurors was that Richards answered no to the question "Was anyone at fault?" He filled the form out at the hospital just hours after the incident.

Kvas also called CSX conductor Rick Dillon, who testified that he had a similar incident at the Keyser railyard just four days before Richards. Dillon said the goose flew toward him, but he wasn't injured.

On cross examination from Williams, Dillon said he talked to his engineer about the goose run-in, but laughed it off. And he said no further report was made, but he did say he would report a potential hazard.

"You didn't think the incident was a big deal?" Williams asked Dillon. "Right," Dillon replied.

Queen and Henderson also testified about the hospital visit and their inspection later that day of the railyard when they removed the goose and its nest, which included eggs.

Columbus, Ohio, physician Christopher Hyer also testified via videotaped deposition about his treatment of and surgery on Richards.

During closing arguments, Kvas noted that railroad employees aren't covered by workers' compensation and have to come to court to see such compensation under the Federal Employee Liability Act (FELA).

"CSX has a duty to provide a safe place to work," said Kvas, a Minneapolis attorney with the firm of Hunegs, LeNeave & Kvas. "CSX has a duty to inspect the workplace."

In his closing, Williams reiterated that CSX didn't know of the goose and potential hazard until Richards' incident.

"What evidence exists showing there was a hazard?" Williams, who works for Huddleston Bolen out of its Huntington office, asked. "None. You have to gauge the case and the railroad's conduct on what information was known beforehand.

"Has the plaintiff fulfilled the burden of proof of negligence?"

Richards was seeking nearly $24,000 in lost wages and other compensatory damages, including past and future pain and medical treatment and impairment of future earning capacity.

U.S. District Court case number: 3:08-0079

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