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Boyd v. National Railroad Passenger Corp.1/20/2005
ated crossing. NORAC rules require a pattern of two long whistles, followed by a short whistle and a final long whistle, and provide that in accordance with a "W/MX" sign, an engine whistle or horn signal must be prolonged or repeated until the last of the multiple crossings is passed. Here, after passing through the Wales Street crossing in Abington, Prone stopped blowing the whistle for several seconds before sounding it again as he approached Pine Street.
Pursuant to 49 C.F.R. § 213.9(a) (1997), the maximum allowable speed for this type of train on this type of track is 80 miles per hour (mph), although the MBTA and Amtrak had set a more stringent maximum speed of 70 mph for the Old Colony line. Prone told State police officers that he had been operating the train at 70 mph, but the event recorder indicated that the train had been operating at speeds of up to 78 mph and that when Prone applied the emergency brakes, the train had been traveling at 75 mph. The event recorder also indicated that the train was traveling at approximately 78 mph for ten seconds before it approached the Pine Street crossing. According to an Amtrak supervisor, however, the actual speed of the train could have been over 80 mph. An outside expert, a consultant specializing in traffic and train accident reconstruction and highway safety, testified that where the event recorder showed a speed of 78 mph, the train's actual speed was 92 mph, and that where the event recorder showed a speed of 75 mph (when the emergency brakes were applied), the train's actual speed was 88 miles per hour.
According to an Amtrak report, Prone was exceeding the maximum authorized speed while operating the train, and the event recorder data revealed that at three crossings earlier that day, he had not sounded his engine whistle in compliance with NORAC rules. Prone was suspended for thirty days for these violations in accordance with his union contract.
Discussion
In ruling on a motion for summary judgment, "a judge . . . must consider 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' in determining whether summary judgment is appropriate. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The burden on the moving party is to 'show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Id." Madsen v. Erwin, 395 Mass. 715, 719 (1985). "This burden need not be met by affirmative evidence negating an essential element of the plaintiff's case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
The plaintiff's wrongful death claims were predicated on the defendants' negligence, statutory violations, and wilful, wanton, or reckless conduct. Under G. L. c. 229, § 2, a wrongful death claim may be brought against someone who, by his negligence, causes the death of a person, or against someone who, by his wilful, wanton, or reckless conduct, causes the death of another.
I. Wrongful Death Based on Negligence
General Laws c. 229, the wrongful death statute, has a specific exception applicable to railroads. Section 2 of the statute provides: "a person operating a railroad shall not be liable for negligence in causing the death of a person while walking or being upon such railroad contrary to law or to the reasonable rules and regulations of the carrier" (emphasis added). G. L. c. 229, § 2, as appearing in St. 1973, c. 699, § 2. The statute applies even where the inj
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