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February 26, 1986


The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

This matter is before the Court on defendant's motion, pursuant to Fed. R. Civ. P. 12(b)(6) and 56, for an order dismissing the action on the grounds that there are no genuine issues of material fact to be tried and that defendant is entitled to judgment as a matter of law. Plaintiffs Errol and Sydelle Dobelle seek compensatory and punitive damages for physical and psychological injuries allegedly sustained as a result of Errol Dobelle ("Dobelle") having witnessed severe and fatal injuries to other passengers at the scene of a train wreck while he was a passenger on defendant's train. Defendant claims that, because plaintiff's psychological problems were not proximately caused by the accident, the complaint in this action should be dismissed.

Plaintiffs are citizens of Pennsylvania. Defendant, National Railroad Passenger Corporation, a/k/a Amtrak, is a corporation established by an Act of Congress and is deemed to be a citizen of and to have its principal place of business in the District of Columbia. 45 U.S.C. § 546(m). Accordingly, jurisdiction over this matter exists by reason of the diversity of citizenship of the parties. 28 U.S.C. § 1332.


 Based upon the affidavits and legal memoranda submitted by .the parties, the relevant facts appear to be as follows.

 This action arises from an accident which occurred on July 9, 1980, when a fifteen-foot section of steel rail, carried by an Amtrak work train, struck and penetrated a passenger train. On March 30, 1980, a similar incident occurred when an unsecured buffer rail *fn1" fell between the moving cars of an Amtrak work train causing the train's derailment.

 Following the March 30 accident, Amtrak's Assistant Track Supervisor for the Northeast Corridor directed the Philadelphia Engineer of Rail to circulate to all Division Engineers an internal memorandum prohibiting workers from leaving unsecured buffer rails on trains after continuously welded rails ("CWR") had been unloaded. In addition, no unloaded train was to be permitted to be moved until it had been inspected by a track engineer, an Amtrak official, to determine that no unsecured equipment was lying on it. Amtrak took no further actions. The memorandum was not sent to Amtrak's Operating Department or Equipment Department, although these departments were supposed to coordinate their activities with the Engineer of Rails during CWR unloading.

 On July 8-9, 1980, a CWR work train was unloading rail between Morris and Grundy, Pennsylvania. The work train consisted of thirty-three cars, twenty-eight of which were flat cars specially equipped to transport CWR. An inexperienced track supervisor was assigned to supervise the unloading of the CWR. After the CWR had been unloaded, the train, which had not been inspected, headed for the Hudson train yard in New Jersey. The members of the work crew, who were unaware of the memorandum circulated to all Division Engineers, did not secure the loose material on the train, nor did they secure the buffer rails lying on the beds of the rear cars. Contrary to standard Amtrak operating procedures, the train was not equipped with a rear cabin, which would have allowed some of the crew members to observe the rail train while it was in operation, as a precaution in the event anything broke loose. Instead, all of the train's crew members rode in the head two cars of the train.

 At approximately 4:00 p.m. on July 9, 1980, the work train passed a Metroliner. The Metroliner's conducter noticed the loose material on the work train and informed the Midway, New Jersey station. The Midway operator relayed this information to the county station operator, who observed that the work train activated the dragging equipment detector, an indication that material was trailing from the train at track level.

 The county operator radioed the work train. Although the train's radio was not operating properly, the conducter understood enough to prompt him to stop the train. He "walked" the train and found several rail joint bars hanging over the sides of the rear cars. He pushed these bars back onto the train and attempted to secure them. No attempt was made, however, to secure the buffer rails, which were lying loose on the flat bed cars. The train then continued to the train yard.

 Dobelle left New York City's Pennsylvania Station at 6:00 p.m. on a six-car Amtrak passenger train bound for Philadelphia. At 6:40 p.m., this train passed through Linden, New Jersey, travelling at sixty miles per hour. At the same time the work train was proceeding eastbound on the parallel track. As the trains passed each other, a fifteen-foot buffer rail, weighing 755 pounds, struck the passenger train, sliced through the midsection of the first car, dismembered and killed one passenger and critically injured seventeen others. Plaintiff's deposition testimony demonstrates that he saw the rail coming right at him and that he feared for his personal safety.

 I saw a projectile come through the bottom of the car, approximately . 18 inches from the floor.

 Three feet from me.

 It was aiming right at me.

 . . .

 When I found out that I was still in one piece, and that I wasn't hit, I just started looking to see if everything was there and I wasn't hit but the gentleman to my left was no longer there.

 All I know, he was to my left, when the projectile came through, it caught a girl's leg and then I saw a body go flying up and back and then after checking myself -- I thought I was injured at first because I had some splattering of blood on me. . . .

 He stated that, after he got up to see if his legs were all right "I just couldn't believe what I saw." Plaintiff also stated that, when he saw the projectile coming, he stooped breathing and froze.

 After the accident, plaintiff assisted the rescue workers. He recalls one woman who was on the "bottom of the pile" of bodies. "[H]er face looked like . . . she was beat up with baseball bats all over." Plaintiff believes that if he had not turned her over, she would have drowned in someone else's blood.

 Plaintiff was taken to Rahway Hospital. The only physical injury he complained of was some pain in his lower back. The doctor noted, however, that Dobelle suffered from "acute anxiety." Although he did not feel well, he was not admitted to the hospital and was permitted to return home. The day after the accident, Dobelle was examined by his personal physician because he "just didn't feel good." He discussed with the doctor his depression from having seen the injuries to the other passengers at the scene of the accident.

 Since the accident, plaintiff has entered hospitals three times seeking treatment for acute depression. The medical reports describe an emotionally devastated man who cannot cope with the memory of the accident. When plaintiff was admitted to Eugenia Hospital on June 4, 1982, he was suffering from depression. He had gained weight, begun drinking and had lost interest in his family and life in general. He was subject to anxiety attacks and he could not sleep. He was discharged on June 12, 1982, and placed under out-patient care. One year later, when he was admitted to Huntington Hospital, it was noted that "his sleep disturbance, lack of ...

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