usually by car leaks like three to one that'll do then they stop and that's the normal way of doing so a switching operation in the railroad and then once the coupling is made then the locomotive stops allows the switchman to couple in the air with the glad hand and so the car can then use the air brake system of the entire operation in this particular case the engineer was in the locomotive approximately twenty two cars away from where the coupling was to be made so therefore with the switchman at the couple it was that as an ears of the engineer and they only were able to communicate by radio it is undisputed that the training yes ma'am is in the safety rules and the operating rooms on the railroad you generally have a number of brews you have the operating room you have the safety ruse and you have has made a ruse and sometimes you even of training miller was assigned to supervisors to be in charge of his own the job training of a g s and recognize that the night team days of whirlwind training at mcdonald is supervisor for the on the job training their duties were to choose the type jobs mr miller was to be exposed to and to also choose the mentor for that particular job only these gentlemen would choose the conductor that was in charge of the particular operation and that's because that person was normally the one that was most experienced and dragon yard consisted of several liquid gas plants and a small a g s feel this was right outside of hattiesburg mississippi it got its name the dragon yard because the players the barn at night looked like of dragons the purpose of the trains in the dragon yard were to remove empty cars and replace or spot as they call it on the railroad conductor trainees would meant at the beginning of the shield for a required job briefing now a job briefing only a g s and actually on all the railroads is hail before each and every time and this is important and every time to tight job changes they are discussed in detail the manner in which the job is to that the crew used a totally different method of coupling of the colors than what he had been taught at mcdonogh a pony entering dragon new york even though their job duties were changing and had been a qualified conductor for only eight months at the time of his selection during the twenty fifteen and part of the first part of as pointed out in their brief at the time of the accident mr henderson the switchman and mentor at the time had no idea where miller was what he was doing m this over the radio but he had no idea what he was talking about because nobody had ever told him in training or anywhere else that they were going to use a bunch of the rolling cup now what the rolling coupling actually was was the engineer would start the engine and remember he was in the engine and he was twenty two cars of what he had to rev the engine up anough to push twenty two loaded tank cars into that track and want to see started the first coupling would be made and then instead of stopping and going to the procedure i explained while ago that was m when they found he was he was in between oh i'm sorry where he was actually found that which yeah it was between the first car and the second ca is the other way and you had your locomotive in twenty two cars in front of it that it was actually talking about the first two cars that were in the track to be couple would be between the twenty two cars and the first car sitting there he was between that first car and the next car become up about now at this point it's a little bit you need a little bit more explanation about the cars and what they do the locomotive was pushing the twenty two car the loaded cars and it was to hit the first car and make the c like i said while ago normally they would stop poor black that would have given the opportunity to mr miller to do whatever he was doing and get out in this case of course it kept going now these cars because their tank underneath the drop bars you have what's called a cushion underpinning and this allows the drop ours to expand and go back approximately six feet and the reason they do that is because they get banged around they get pushed they have to go back go then they go forward they are spread out and then they bunch up and they will get closer they have to go up or heels they have to go around curbs so each car has about a three foot radius that it can explain and when these cars these twenty two loaded cars hit that first car and didn't stop it was just like somebody had exploded into that empty car and it's going to jerk out and go at least those three feet in addition to the momentum pushing behind them and in they'll keep going no conductor hinders trying to yes ma'am we did conductor henderson admitted that time of the accident that he was facing down coming locomotive and in the twenty two credit cards he further admitted he had no i there were no eyewitnesses to the to this accident at all and i want to point out a couple things because i'm just about out of time the district court found that of mr miller entered the track  when the when the train was moving and there were no eyewitnesses this was a conclusion that the court came up with without any evidence to back it up at all it's just as plausible that mr miller could go on between the cars trying to fix whatever he was doing while the cars were still sitting still and then the locomotive came in and hit the car behind him and jumped in pending he was actually therefore we've located every bit of physical anybody has to make the time it took the the twenty two cars to reach the first couple of car it takes five to ten minutes where we did we don't really know and i can't there was no testimony about how long it actually took to get there it was i do think that he did counting down three two one which would have been approximately three cars away which is roughly they figure car fifty feet so we were talking about one hundred fifty feet away from the original cup and that's very straightforward and judge sterrett granted summary judgment in favor of the railroad on a very precise point of long and that is this but on the night of august twelfth twenty fifteen it was not foreseeable that gregory miller would ignore his trying to disregard his personal safety and step between moving equipment effectively taking his own life and the reason that mr miller's actions were completely time for seeable by a g s is that mr miller had undergone specific training regarding how to safely work around live trap he had also been tested and made a perfect score on the precautions to ease when crossing over live track and finally he had demonstrated his knowledge of the proper procedure for requesting to cross over li tracks just minutes before this accident occurred and we have to remember in this case in any f t l a case that foreseeability is required before the railroad has breached any d d and just stare  grand of summary judgment was proper when you begin by looking at what the federal employer's liability act really is and we look at some familiar principles to build on what judge stare did in his lower court opinion the judge or seen or participated in a rolling stop of several cars that's a great question your honor and it brings in several different parts of the case and let me start there factually if you look at the testimony of mr silverman the same your ground employee on this night he was the conductor he says that before this crew that work the lone star facility which is eight eighty two that they work the facility before working at lone star which is page eighty four if you look at pages twenty seven to thirty seven is it of his deposition you'll see that they had worked a gas trance loading facility identical to lon stork just prior to coming to the lone star facility to do this work which meant that which meant that they removed cars and then spotted new cars in the exact same manner that they used it long star you to rolling yes yes page twenty seven to thirty seven in his deposition they specifically used the rolling coupling at the age eighty four site before they came and worked a lone star which is  any evidence from the deposition otherwise that he had been trained on it meaning before that i really operations toward him and given some guidance about what to expect is one thing to it happened but it did he had an overall procedure described to him is that part of the testimony to position let me answer making two points that i think are important to south first of all you have just one and two to your question well i didn't get far into my argument so some of these things i would have talked about it a different time first of all when you are trying to make donna ga you're trying don't how the railroad operates in a general sense and then you go to a territory that territory my service gas translating facilities which have a specific way of spotting and coupling cars you may work at a cult facility you might work at a gravel facility you might work at a different facility but after you leave mcdonogh georgia you work hattiesburg said you're never trained at mcdonogh georgia on the specifics of how you address industries that's done at the local level based on the territory that you're working inside where the fact that he wasn't trying on a rolling mean that there aren't many facilities where you have the cars spotted ten feet apart like you do at this trans loading facility but what he was trying gone is how to move over live track that's the most important comment i will make to the court today you do not cross over live track whether it's a couple in straights and couple in stretch trying loading maneuver or if you do to a walking speed couple couple way that the railroad also contributed in some way with his own negligence and so much emotional septa's i think he must he was negligent to have put himself in that position if phil you don't understand what was going on out there and what to anticipate whatever reason may decide to violate this three step approach before crossing tracks he would need a reason to know the dangers of it and that it seems to me is the main thing you have on that is what you just told us that he had experienced that in the previous yard that same day night that chain worked that testimony is in the deposition about the loading facility immediately prior to lonestar but let me make another comment that i think is important for the court to understand these ground employees build and dismantle trying to all day long they have to get story step protection all day every hour of every day to build trying is because you cannot be around live tracked when a locomotive is attached to cars because things can move and so that's what judge stare looked at he looked at the fact that the railroad had a den a fire hazard crossing over a live track and then said did the railroad address that hazard with a precaution anisha aiding the three step rule of protection was the per call sion that the railroad assigned to that hazard then he looked at the facts of this case mr miller been trying on how to safely cross live tracks yes he had he actually made a one hundred on a specific examination on how do you cross a live track but when he left and went to the territory he would have been part of  that every hour of every day would have gotten three step protection to build and dismantle trying to this was nothing new to him and to say that this coupling was done in a manner that would have been difficult for him to understand is is really an overstatement of what was happening at two miles an hour because the cars were spotted ten feet apart that was a couple two mile an hour walking speed couple two mile an hour walking speed couple there's nothing about that that would cause mr miller to ignore his training that i cannot be around live track unless i have three step protection let's go back to ask the question what evidence was there about about it is there any discussion of what he was there's not a discussion about specifically what he was told about the rolling coupling but also look at mr simmons deposition regarding giambrone things because when he reported to work at three o'clock that afternoon and the head is virgie arthur they had a job racing and said we're going to work these trans loading gas facilities tonight while they work them the sign way because the cars are spotted at each facility the same way but every time they finish a job and take a break miss to sell them and says page fourteen through seventeen of his deposition we have a safety briefing to top about what we're about to do next which means that when they became ready to do the lone star coupling and car assembly maneuver they had a safety break and said this is what we're going to do a safety briefing and he would have been a part of a rolling coupling just an hour or two before at the eighty four end of story and would have been told by mr stillman we're about to do another identical maneuver to do the same thing at this at this next gas facility causation in this case he stopped at d d and brakes and he did it through two cases and if you'll allow me to explain those two cases they are the riordan versus peoria railroad case which is a seventh circuit summary judgment from nineteen ninety four and also the s ar case which is a u s district court case from mississippi bristly riordan was a locomotive engineer who when he was passing by him a behoof someone shot a color gun and he lost his eye and when he brought his complying  t l a he said three things were possible that the railroad could have done to prevent to prevent this injuring one i could of had guards patrolling the neighborhood today they could have put in the last in the locomotive that would be prevented if for  or an object to come into the locomotive or three that they could have could have required the crew to wear goggles and so the court looked at those arguments and said wait a minute one of the things that you have assert that would prevent this incident was already in place on this locomotive and it was tempered safety glass the problem for the plaintiff is he had this window open and the court said when the railroad has a den a found a hazard and then a precaution to meet that hazard and if the precaution had been used the injury would have been avoided the railroad made its duty to force see the possibility of an injury and if the injury is not possible if the precaution is used that's the end of the analysis the railroad meant the duty and there was no breach and that's what judge sterrett determined in this case that there was a safety rule where there's a hazard crossing over live track there's a safety precaution that these employees use every hour of every day on how to cross over a live track and if mr miller who had been trained he made a hundred on his exam and had used it according to radio communications just minutes before the accident the question for judge sterrett is in light of those facts was it foreseeable that he would ignore his training and move between live track with moving a quick move on the track at the time that he did and that's what judge stair determined no there wasn't no foreseeability therefore there was no breach of duty on the part of the railroad and he never got to it's the same as an analysis that is every rule violation going to give the railroad this defense an entitled the road to summary judgment if the precaution will prevent the accident from occurring you have to say the railroad made its d d but in this case let's say mr miller had diabetes and an hour before the accident he became sick and he was no longer louis said he wasn't answering questions appropriately and the ground and the crew put him on the ground around life trapped in that condition and then he stepped between moving equipment he violated the three step road well that would not be negligence on the part of mr miller because he would not have been well i understand that argument from the plaintiffs and i don't call it a red herring because it was a very serious incident that occur but we have to remember that the railroad is not an insurer of the safety of its employees and the railroad has a right to expect its employees to care for their own safety when mr miller was turned and observed by mr henderson he was standing either fifteen to twenty five feet away he wasn't giving any indication that he was was going to do anything dangerous and so that the show who moved began and mr henderson began walking back and when he turned and saw a dart he said that'll be the trying stopped and that's when we fam mr miller but supervising under plaintiff's an analogy would be to hold on to the guy and we then take away the railroads right to expect an employee to take care for their own safety especially when they've been trying on how to maneuver around live track is there any evidence that he been exposed to rolling coupling on other days not in not in the record i think we can infer that because he had been working the twenty meridian and had his birth for twenty five days but there's no working with other crews doing these gas trans loading facilities it's just not in the record but we do know he did it that night at the eighty two in an hour or two later at lonestar what did he do  eleven steel to cars that will then go back into the tight i'm salt domes but they swing out a catwalk so that they can get into the tank car and offload the product so they have to spot them according to where the big apparatus  that the trans loading facility is using they have to spot it based on the customer's needs which ends up being about ten feet between cars so they would have used the identical maneuver of grabbing eleven cars spot cars the same way and we would pick up cars the same way d g s this rolling coupling maneuver when you work that facility and he said yes we did and so they used the identical eleven car pick if i recall correctly that inadequate training was not raised in the district court it didn't get him i remembering that correctly if you're remembering that correctly what was raised was an adequate supervision but the inadequate training element i'm guessing it was alluded to at some point in the discovery of the case but i don't think the adequate training was focused on as much as an adequate supervision was degree focuses on one thing it was it right or not i'm not sure i can answer that question i'd have to look specifically at the  start with the railroad not being unsure of the safety of its employees and then you move to the atlantic coast versus dixon case that says the railroad has a right to expect its employees to care for their own safety and so to colleagues us to be any more supervisory to prevent this accident would've required us to physically contact and hold mr miller which is making us an insurer of the safety of our employees which is not the law under the federal employer's liability  near the the tank car one third to one half tank car away from him with no indication of unusual behavior at all thank you very much and but all roads also have a mid to were meant to be and as mr sullivan said when he went through the program his conductor that he worked with would require him to work sat by side with him and never let him out of his sight now mr and referenced mr henderson turning and glancing at mr miller for the last time and then undeniably he said he turned and face the locomotive and the twenty two tank cars coming for the cup and he never saw mr miller any more he didn't know pace and that was the test we make of this film and deposition that he had gone through a rolling coupling earlier processor earlier that night and really experienced it would have seen how it worked they only think that i can recover from that is that he had mentioned they had worked at another politeness i do not remember anything in there about a roving coupling using a rolling coupling and especially not explaining what a rolling coupling was my thought was this was the first opportunity that he missed miller to be exposed to rowan coupling and it does point out i'm sticking with that statement the deposition will say what it is it is is either there or it's not and i don't remember after the way if it had happened the way it spoke of happened just a minute would have stayed on the side away from the rail until the cars had collided and partially coupled correctly and  then did he have to go in between and over the couplings are on of them to do his duties not at that point the way the roebling coupling works and is far as i side for a couple hours and be less trouble for me to be over there and that's something we just don't know what really we see on the railroad if the couplings are not open in other words the one is closed and they're in they're going to be coupling up they would buyouts all feature so the couplings itself but they both had to be open we've seen so many times  for him to think that he could go in there he didn't know that the cars were going to keep coming and that made a difference and that's what caused him to get pinned between the two covers and you don't know anything about this previous eighty four i don't remember that there's any evidence in the record that there was a rolling coupling prior to this time of the dragon you know that to me was his first exposure i a new conductor trainee about what he should experience in the yard and what would take place and what he had to do and he said that was unusual for conductor trainee especially on his first day of employment in the dragon yard and that's part of our in our brief included in the two of and you know you know if there was any difference in the cars at the workplace where knew that it if it glanced at him and actually saw him he knew that he was not fifteen feet back perry from when he turned to look at him at the one time but then add to that he turned around and face the other direction mr what i believe the cars were actually empty that they were picking up the cars that were loaded were the cars being pushed in there and they have certain regulations about the speed they can be hit with a loose and things like that which will really didn't play a part in our particular case i'm sorry i've gone way over your timeline well that's fine just before sit down other any other questions