Anyone else keeping an eye on this one?
https://www.scotusblog.com/2022/03/justices-search-for-the-line-on-use-of-a-locomotive/
I’d say a locomotive is “in use” if it’s sitting in a yard and capable of being put to work after starting it. If it’s under repair or stored, then it’s not in use. I like them saying twice about draining the brake flud.
The thing that bothers me - I cut away from other engines all the time that are, by some of these definitions, “not in use”.
We’re still perfomring duty, and I’m required by rulebook to make sure said engine is set up right when cutting away. Def’n lack of understanding comparing it to, say, towing a car.
That’s another thing I was going to mention…if during the course of your duties, you have to be on/in it, it’s in use.
Now I have to go back and read all these actual comments.
Can anyone state the original controversy – what was he doing on the engine when he suffered the injury, and did the railroad require him to be there?
I did not read that any of the justices considered the specific case of a locomotive being hauled dead-in-train either as part of a consist that has been shut down ‘to save fuel’ or that is being power-balanced. In both cases I would argue that the locomotive is “in use” BUT that accessing it by the engine crew as part of normal operation of the train would not ‘count’ as part of the job of ‘operating the train’. I’ll defer to Zug, Jeff or other railroaders on this.
I personally see little difference between an engine stored on a shop track and an engine actually moved into an enginehouse or similar facility to be worked on. BUT if the plaintiff were in the process of arranging to set up or move the engine around shop trackage, or into (or out of) the shop, I’d think that safety rules would apply.
The current requirement is that a locomotive in use has to be inspected once each calendar day. In theory, it could be ~47 hours between inspections. It is perfectly legal to wait until the end of the day to do the inspection.
We regularly take locomotives “out of service” during extended periods of inactivity. It’s noted on the blue card when it comes time time to put the loco back in service, and those days are not counted in the required periodic inspections.
The question here is plainly “in use.” I didn’t get a sense from the article that the locomotive in question was “stored servicable.” Nor did I get a sense of the circumstances of the incident. Was the incident caused by something that should have been caught in an inspection?
My perspective may be a little different than a Class 1, however, as our engineers do the inspection, not the mechanical department.
The guy who fell on the engine was doing something while on duty, I assume. No? If an on-duty employee is on the engine, I’d say the engine is in use, unless that employee is involved in the repair of a dead engine.
A Union Pacific employee was injured on Union Pacific property… unless it can be shown that the employee had no right to be on said property or that he was clearly prohibited from occupying said property then his injury claim should be treated like any other injury involving a locomotive that is in transit. That the locomotive wasn’t in use… parked… or whatever should have no bearing on the case if the engineer was required to be on that locomotive, was directed to be there by his superior, for whatever work related reason. Lawyers are being paid thousands of dollars an hour to parse the meaning of the phrase “in use”… heaven forbid we defer to commonsense instead.
I would opine that since “in use” is such a major part of the case that perhaps there was a defect that would/should have been repaired after being reported (in the daily inspection) that was a factor in the injury.
If there was no such defect, I have to wonder what the ado is about.
Good point, Larry.
I see… so if an employee is sent to work on a locomotive that is deemed to be “not in use” and he’s injured then his injury claim is ruled inadmissable, invalid. Hmmm… ok…
Salem, IL is not a repair point on the UP. A locomotive not at a repair point on a repair facility track behind Blue Flag shop protection to my mind is IN USE.
As far as I’m concerned… If it’s not on the deadline, or laid up good order it’s in use…
What the Carriers might be looking at is more than a liability aspect. Perhaps they are looking at the possibility that a locomotive “not in use” for a particular time ,say a day or two, be granted credit towards the 92 day “Quarterly” inspections, which in turn might affect the other inspections required.
BUT, in my mind and experience any locomotive that is in use, or has the potential to be used has to 1- be inspected prior to it being used, and 2- if not usable be tagged as such. In any event the employee involved had to be on the locomotive to ensure this (handles correctly positioned, isolated, shut down (if required)) and a safety inspection on the exterior was done prior to movement.
From one of the documents filed in the suit:
I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power.
The same is true for the Class 1’s if they have the a similar situation.
Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it’s going to even be started that day or not. For a M-F operation, that means two days of OT.
I suspect that if that’s how the court rules, you’ll see a rule change in short
[quote user=“tree68”]
From one of the documents filed in the suit:
LeDure’s claims arise from injuries he sustained after slipping on the oily passageway of a UP locomotive which was part of a freight train that originated in Chicago and temporarily stopped in a UP railyard before continuing into Missouri. Although a federal safety regulation enacted pursuant to the LIA requires that locomotive passageways be kept free of oil and other slipping hazards and the FELA imposes negligence per se liability when that regulation is violated, the courts below held that the locomotive was not “in use” within the meaning of the LIA to trigger application of the regulation and dismissed that claim. As to the general FELA negligence claim, the lower courts held that the oily passageway was not foreseeable to UP even though it failed, for several days before the incident, to perform the mandatory daily inspections of the locomotive.
I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power.
The same is true for the Class 1’s if they have the a similar situation.
Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it’s going to even be started that day or not. For a M-F operation, that means two days of OT.
[quote user=“tree68”]
From one of the documents filed in the suit:
LeDure’s claims arise from injuries he sustained after slipping on the oily passageway of a UP locomotive which was part of a freight train that originated in Chicago and temporarily stopped in a UP railyard before continuing into Missouri. Although a federal safety regulation enacted pursuant to the LIA requires that locomotive passageways be kept free of oil and other slipping hazards and the FELA imposes negligence per se liability when that regulation is violated, the courts below held that the locomotive was not “in use” within the meaning of the LIA to trigger application of the regulation and dismissed that claim. As to the general FELA negligence claim, the lower courts held that the oily passageway was not foreseeable to UP even though it failed, for several days before the incident, to perform the mandatory daily inspections of the locomotive.
I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power.
The same is true for the Class 1’s if they have the a similar situation.
Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it’s going to even be started that day or not. For a M-F operation, that
What all is involved with a routine inspection? Is there a checklist that’s mandated by the FRA? I had no idea that engines were supposed to be inspected daily.
Interesting case.
Fluid levels, guards in place and secure, trucks and brake rigging intact & correct, brakes (independent & automatic), leaks, lights, horn, bell, radio, couplers, hoses, required supplies (flagging, tools). Our inspection sheet covers both sides of the paper.
In this case, the question arises - just who is responsible to perform the inspection? Our engineers do the inspection, generally at the start of the day - better to find something broken then than while you’re halfway to wherever with a trainload of passengers. And we’re not a 24/7 operation.
The Class 1’s may give that responsibility to the mechanical department. Our Class 1 folks will have to address that.
Following is an example - I offer no assurances that this represents any one railroad’s procedure, but it is pretty close, and also has some reference information.
Sometimes mechanical, sometimes the engineers. Depends on where, when, and circumstances.