FAMILY'S PROMPT ACTION SECURES IMPORTANT SETTLEMENT FOR INJURED TRAINMAN

Family's Prompt Action Secures Important Settlement For Injured Trainman

J. Dillon Hoey
Hoey & Farina Partner
1-888-425-1212

During the early evening hours on May 24, 1999, Jim Foley, Hoey & Farina Attorney, answered a telephone call to the office from a concerned local union officer.

The railroader advised Jim that Andre Ward, a trainman for CP Railway Co., in Chicago had just suffered a severe right arm injury near an industry site and was being airlifted to Loyola Medical Center for emergency trauma surgery. The local officer stated that the family was asking for advice from designated legal counsel that evening. Jim immediately telephoned Dan Downes, who was in his car, and Dan drove straight to the hospital.

Dan was with Andre Ward’s family at the hospital when the doctors reported that they were uncertain whether Andre’s right arm could be saved. While Mr. Ward was in surgery, the family asked for advice and help. Dan explained to them the necessity for prompt legal action. It was important to act immediately so that an on-site investigation, separate and apart form the railroad’s investigation, could be started and the evidence preserved before the railroad altered the accident site or shipped out the railroad cars. The family retained Hoey, Farina & Downes ("HF&D") that evening, and Dan Downes, Dillon Hoey and Jim Farina began working on the investigation immediately.

The next morning, May 25, 1999, Jim Farina filed a complaint against CP Railway Co. in the U.S. District Court for the Northern District of Illinois, accompanied by an emergency motion for right of entry onto railroad property to conduct an investigation and preserve the evidence. An emergency hearing was scheduled before the Honorable Judge Norgle for that afternoon.

After a lawsuit is filed and protective orders are entered by the court, the railroad then has a legal duty not to alter the accident scene, railroad cars or other evidence. In this case, HF&D had already learned that CP Railway Co. had finished its investigation at the scene and had hired an outside contractor to sanitize the area the night of the injury. However, the railroad cars were still in the Bensenville Yard.

On the afternoon of May 25,1999, Judge Norgle, entered an order granting Hoey, Farina & Downes the right of entry to the accident scene and to inspect the railroad cars involved in the incident. After hearing the evidence, Judge Norgle determined that Hoey, Farina & Downes had the right to conduct the investigation. He further ordered that the railroad be prohibited from talking to Mr. Ward until Mr. Ward was able to walk into the judge’s chambers and inform the judge personally that he was prepared to give the railroad a statement concerning the incident.

Throughout these legal maneuverings, Mr. Ward had three surgeries in an attempt to save his life. Despite those efforts his arm had to be amputated.

In summary, the investigation by Hoey, Farina & Downes established that the caboose and adjacent box car in the train were in bad order condition – the platform and box steps were bent, and side bearings on both cars needed to be replaced. Consequently, as Andre attempted to step down backwards to the bottom step as the train approached a switch, he was caused to lose his footing. As he hit the ground, the bottom corner of the next freight car struck his arm causing the severe injury.

Critical to settling this case, the railroad had no opportunity to discuss the incident with Mr. Ward until his deposition in the case, with Mr. Farina present. Shortly after Mr. Ward’s deposition, CP Railway Co. entered into serious negotiations with Hoey & Farina. Mr. Ward’s case was settled within eight months of the incident. The terms of the settlement are confidential.

The reason that the case settled quickly was because the investigation was done before the railroad had the opportunity to repair the caboose and cars. Moreover, Andre Ward’s first statement to the railroad concerning the facts of his injury was after he was pain and medication free and able to reflect carefully on the circumstances surrounding the horrific evening. It is essential that you contact the attorneys at Hoey & Farina as soon as possible. Every case is different, but it is important to establish the facts and determine liability before the railroad has the opportunity to build its case against the injured employee.