Straight Track #20 A Hard Lesson With a $1.15 Million Happy Ending

Preserving Evidence:
A Hard Lesson With A $1.15 Million Happy Ending

J. Dillon Hoey
Hoey & Farina Partner
(Written with Mr. Diamond's permission.)

Just before Dale Diamond�s trial against The Belt Railway Company of Chicago on July 24, 2000, the defendant railroad raised its offer from $100,000.00 to $250,000.00.

The railroad reminded its now disabled, former conductor that it had thoroughly inspected the flat car on which he fell immediately after his accident and found no defects on the car. It also reminded its former employee that his attorney�s expert witness did not have the opportunity to conduct an inspection until three-and-a-half years after the injury occurred, and that the railroad would move to bar the expert�s findings of several defects because it had been too long after the accident.

According to the railroad, it was Mr. Diamond�s fault for not watching where he was stepping.

On January 20, 1996, Dale Diamond was riding on an empty intermodal container flat car while protecting the point during a shove at night. As he stepped around the fifth wheel to dismount from the car his left foot fell through an opening for the container pedestals that had been partially concealed by a raised anti-theft device.

As Mr. Diamond�s vision was disrupted by two burning fuses at the end of the car, he mistook the anti-theft device for a metal plate and, as it gave way under his weight, he fell into the hole, fracturing his tibia and fibula. In doing so, he also tore his medial and lateral meniscus, and anterior cruciate ligament in his left knee, permanently ending his career as a switchman.

As Dale Diamond laid in pain on a gurney in the hospital�s emergency room, the railroad�s claim agent was taking his statement while representatives of the railroad were busily inspecting the flat car. Early the next morning, the claim agent and two car foremen photographed what was helpful to the railroad�s defense of the case on the flat car and avoided documenting those conditions which were unsafe. Within a matter of hours after the incident, the flat car was coupled to a train headed across the country.

Mr. Diamond did not retain the law firm of Hoey, Farina and Downes until more than two years after his accident. It then took almost another year to locate the flat car. Upon notification that the car would be in the Chicago area in May of 1999, for only a couple of days, Hoey, Farina and Downes immediately arranged for an inspection of the car on May 11, 1999.

The inspection showed that of the 16 container pedestals on the flat car only two could not be secured down in the openings in the floor. Those were the same two container pedestals that were up at the time Mr. Diamond�s injury. Moreover, the inspection showed that the container pedestal�s anti-theft device where Mr. Diamond fell was bent, and the distortion caused it to catch on the floor of the flat car when it was raised up.

All of these defects were completely consistent with Mr. Diamond�s description of his fall, but the question remained, �Would the court allow the evidence to go to the jury?� It was the railroad�s position that the court would not.

At the trial, however, James L. Farina, Esq., who represented Mr. Diamond, was able to obtain an admission from the defendant�s Director of Risk Management during cross-examination that the anti-theft device being in an upward position was the only explanation that was consistent with Mr. Diamond�s version of the accident as conveyed in the emergency room. Also, important contradictions were brought out between the defendant�s employees who inspected both the container pedestal and anti-theft device which cast doubt on the railroad�s claim that the equipment was in good condition.

When all was said and done, the trial court found that circumstantial evidence created an issue of fact for the jury as to whether the May 1999 inspection found evidence that could be related to Mr. Diamond�s injury. Thus, the evidence of the defects found during the inspection was presented to the jury for consideration.

On July 28, 2000, a federal jury returned a verdict in favor of Dale Diamond and against the defendant railroad. The jury awarded Mr. Diamond $1,360,400.00, which was reduced by 15% for comparative negligence to the net figure of $1,156,340.00. The verdict was over four-and-a-half times the railroad�s best offer!

Although the case had a happy ending for Mr. Diamond, it is important to emphasize how close he came to losing his case because of no action being taken at the earliest opportunity to preserve evidence on his behalf. When a railroad worker is injured on the job, the evidence relating to any unsafe condition that resulted in that injury is almost always exclusively in the hands of the railroad. The accident typically happens on railroad property, involving a railroad train, with the only witnesses being railroad employees.

Immediately after an accident the railroad�s claim agents will search the area for evidence, but will preserve only that evidence which is favorable to the railroad. For that reason, it is essential that an injured employee act immediately to contact Hoey, Farina & Downes as union designated counsel so that efforts may be made to preserve evidence essential to obtaining fair and complete compensation for the injured employee.

We also recommend that each railroad employee notify his family of the need to contact union designated counsel in the event that the employee�s injuries make it difficult for him to do so himself.

Remember, when it comes to obtaining justice in the rail industry, it doesn�t matter to the railroad what caused your injury, but only what you can prove caused your injury.