HUGHES CONSULTING cestembert2, 2015

Mr. Jeff Wrage

Blachly, Tabor, Bozik, & Hartman
56 S. Washington St., Suite 401
Valparaiso, Indiana 46383

Dear Mr. Wrage:

| reviewed the depositions you sent of Jeffrey Chwalek, Norfolk Southern Police Department,
Derick Mason, and Bill Barringer.

in his deposition Mr. Chwalek denies ever conducting any investigation of a highway-rail grade
crossing collision. Instead that responsibility fails to the local law enforcement agency with
jurisdiction at the location. If close enough to the accident Chwalek will go to the crash site and
assist and act “as a liaison” but at no time has he ever made any determination of the root
cause of the crash in conjunction with the local police. Even if he does not do any reporting,
Chwalek, with his railroad experience, could at least assist in determining the root cause of the
accident. Instead he remains “silent” on the cause. This is indicative of Norfolk Southern’s
willingness to always blame the motorist,

Chwalek also denies any training or experience regarding the sight distance triangle yet admits
to attending the railroad’s Grade Crossing Collision Investigation course. Sight distance is
covered in that course.

Crossing closures were part of Chwalek’s job when he was in the Grade Crossing Safety
Department so he understood the criteria and the procedure to follow for getting a crossing
closed. He also knew that a project for a closure could be accompanied with the signalization of
an adjacent crossing which would have an increase in traffic. Chwalek knew about corridor
projects but never had the time to develop any.

Operation Lifesaver trains were part of Chwalek’s responsibility and he acknowledges riding on
the trains. He states the purpose of the train would be for a local police officer with jurisdiction
in that area to ride the train and when a motorist was seen violating a law.as it pertained to the
grade crossing, the officer would radio a unit following the train and the motorist would be
cited. Yet another example of blaming the motorist. No mention was made of attem pting to
find out from the motorist why he committed the violation.

After viewing pictures of the subject crash, Chwalek states he would have to be past the
building to see down the track. He also mentions having to look far to the right takes his eyes
off the roadway and prevents looking for oncoming traffic.

132 Windsor Court # Roanoke, VA 24019
Office: 540-966-6003 = Fax: 540-966-6003 = Mobile: 540-525-4209 » hconsulting@ntelos.net

EXHIBIT

PENGAD 800-631-6089


In July 1994 the U.S. DOT/FRA published a document titled Highway-Railroad Grade
Crossings ~ A Guide to Crossing Consolidation and Closure. The document encourages
the closure of unnecessary highway-rail grade crossings. High St. should have been
considered for closure given that parallel streets Windsor and Huntington were one
block away on either side and Grant and Jefferson Streets easily connect to those
streets. NS’ track chart shows five crossings in 6/10 mile between Windsor St., mp
149.05, and Monroe St., mp 148.73. The FRA recommends no more than four
crossings in a mile which is another reason to consider closing High St.

A letter in the file dated March 3, 1993, from NS’ Resident Vice President Cliff DeLaCroix
to then Mayor Neff of Montpelier, recaps the details of a meeting DeLaCroix had with
the mayor, clerk/treasurer, and city council members wherein NS offered the city an
incentive payment of $30,000.00 to close High and Green Streets. If the city also
agreed to close Monroe St., the payment increased to $45,000.00. Montpelier offered
to close High and Green Streets if NS could bring an industrial development project to
Montpelier. The city also asked NS to support the construction of a grade separation at
Huntington St. and cover the city’s share of the local matching money. DeLaCroix
referred the city’s request for an industrial development project to NS’ Industrial
Development Department and advised the city the railroad would cover the cost of their
cost of matching funds if High and Green Streets were closed. He suggested the city
complete the appropriate forms and submit them to INDOT for the grade separation.
Unfortunately there is no other correspondence regarding the proposal which indicates
there was no follow-up. If any follow-up had occurred the proposals would have moved
forward or been unsuccessful. If the city of Montpelier would not agree to any
closures, NS could have contacted INDOT and requested a hearing to force the closure
of those streets.

NS failed to comply with its own 400 policy and procedures to identify hazardous
crossings and take the necessary steps to mitigate those hazards. Failure to do so
endangers the motoring public. This failure enabled the hazard to exist which allowed
the 9/3/11 collision to occur.

TRAIN CREW:

In his deposition, NS Engineer Mickey Coak stated he first saw Brown’s vehicle when it
was on the east side of the building that was close to the tracks. He noticed the car
because it was moving at a slow rate of speed, 2,3,4 mph and he thought it was going
to stop. This speed conflicts with the report from Crash Data Retrieval which shows the
vehicle was travelling 31 mph 5 seconds before the crash ard the speed was reduced to
20 mph 1 second before the crash.

Coak took no action at the time he first observed the vehicle other than to continue
blowing the horn. He was seated on the opposite side of the locomotive and had a



Resume for:
William R. (Bill) Hughes
« Home: 132 Windsor Court, Roanoke Virginia 24019
© Telephone (A) 540/992-6515, (W) 540/966-6003, (C) 540/525-4209

Personal
e Born August 30, 1948, Married, two grown children

Military
@ USMC, 6/67-7/69, Sergeant E-5, Served in Viet Nam, Honorably Discharged

Education
e Attended Ohio University, Athens, Ohio
e University of Virginia, Executive Management Series (7/92-4/93}
e Numerous Specialized Law enforcement Courses including FBI Instructor School
e Leadership Roanoke Valley Course (1994)

Experience
*° Hughes Consulting — 11/06 to Present
1. Owner — consulting services and expert witness testimony related to rail safety,
security, grade crossings, rail needs assessments, grade crossing inventory, and other
railroad related areas. Previous contracts with the Mississippi DOT (four years) and
Wilbur Smith & Assoc. (truck route corridor project), and multiple cases as an expert
witness nationwide.
A. Participated in annual $.C.O.R.T. conferences as both presenter and attendee
B. Participate in the every-other year OL Symposium and the intervening year
regional seminars as both presenter and attendee
C. Attended the National Highway Rail Grade Crossing Safety Conference
Training sponsored by the Texas Transportation Institute every other year as
both a presenter and attendee
e Norfolk Southern Railway — 3/73 to 10/06
1. Manager Safety, Grade Crossing West — 2/97 to 10/06
Responsible for grade crossing issues on four operating divisions in ten states.
Worked with the state Departments of Transportation, local governments, and elected
representatives on gradé crossing safety issues covering engineering, education, and
enforcement. Managed multiple projects from $5,000 to $11 million.
A. Developed first statewide (MS) grade crossing signal corridor project in the
railroad industry. Received a quality achievement award for the project.
B. Regularly attended the meetings of the Standing Committee on Rail
Transportation (S.C.O.R.T.) as both an attendee and presenter

C. Became a member of the Operation Lifesaver Boards of Directors in AL, MS,
TN,OH, and LA ~ :

D. Served as a member of the TN Governor’s Rail Safety Task Force

E. Attended the annual National Highway Rail Grade Crossing Safety Training
conference sponsored by the Texas Transportation Institute as both an attendee
and presenter

F. Participated in numerous Operation Lifesaver trains in several states

G. Attended the Southeastern Region Rail Highway Safety Conferences as both

an attendee and presenter



Chwalek dances all around the question of gates/light/bells being the most effective warning
device quoting the oft used statement that over 50% of the grade crossing crashes occur at
crossing with active warning devices. No one making that statement offers any explanation as
to why that happens and when pressed, while never say the installation of active warning
devices should be discontinued.

Derrick Mason was a member of the Grade Crossing Safety Group for eight years and held a
similar position as Jeff Chwalek. In his deposition Mason pretty much echoes Chwalek’s version
of the duties of Manager of Grade Crossing Safety. Neither one seems to believe they had any
ability to affect what type of signalization is placed at grade crossings. In fact, they could have
made any recommendation they deemed appropriate and followed thru with Norfolk
Southern’s C&S Department to the point of assisting with funding. Mason states he never dealt
with the grade crossing budget which is interesting because he had the authority to offer
incentive money for closures as well as signal improvements.

Mason, like Chwalek, refuses to acknowledge that gates, lights, bells, are the best warning
devices at grade crossings even though it’s been acknowledged by a variety of sources that’s
the case.

Mason also states he has no knowledge regarding sight distance and never once stopped on a
hy-rail trip to inspect sight issues at a grade crossing. Neither did he ever conduct any type of
investigation to determine the cause of a grade crossing collision. He would get notification a
crash occurred on his territory but would only monitor the frequencies of such crashes, not
causation. Further, Mason did not involve himself with the geometric design at crossings
leaving that up to the road authorities. The fact he didn’t get involved means he didn’t know
any better ~ improperly trained — or simply was too busy left it up to others.

Bill Barringer was the last deposition read. He correctly states that the vast bulk of his grade
crossing experience prior to coming to Norfolk Southern was supervising two people who
focused only on public education.

Barringer fails to acknowledge any training regarding the limitation on train horn audibility.
Almost every seminar we attended had a presentation on train horns. Operation Lifesaver even
acknowledged that vehicles have better sound proofing making it more difficult to hear train
horns and encourages people approaching grade crossings to turn down their radios and
heaters/air conditioners and roll down their windows. This almost the opposite of what
Barringer says — quieter cars make it easier to hear train horns. Further, there were numerous
publications that came to Norfolk Southern dealing with train horns,

Barringer’s comments about sight distance are confusing. He says he has never performed
sight distance calculations and that we’re (meaning Norfolk Southern) not involved in them,
Yet he goes on to say there are three different types of sight distance and can name all three.
He states cornering sight distance is used by traffic engineers use sight distance when they



triangle. That was never the case and was never taught otherwise. Regardless, the diagram

and chart were removed. Operation Lifesaver subsequently took over the course management i
to provide consistency. Sight distance is mentioned in the latest version of the course. |
Interestingly, the course Barringer tock at the University of Wisconsin is a version of the Grade
Crossing Collision Investigation Course now being taught.

The railroad industry understands the importance of sight distance and has developed a
vegetation plan accordingly. The clearing distances are varied by state and generally do not
conform to the sight distance triangle. However, it’s generally understood if there is
insufficient sight distance and no correction can be made, the crossing should be considered a
candidate for closure or placement of active warning devices.

Sincerely,

fos
William R. Hughes
Hughes Consulting



need to take corrective measures if the sight distance is not sufficient. Norfolk
Southern knows this to be true based on their experience with grade crossing collisions
and from the availability of the studies. The fact gated crossings are safer than flashing
lights only crossings is also known to the railroad. Yet given the limited sight distance
NS failed to take any action to install gates at High St.

CONCLUSIONS:

Norfolk Southern does not apply the same principles of work place safety to public
safety. The railroad knows the importance of conducting a thorough investigation and
root cause analysis of accidents. The information developed from a properly conducted
investigation can be used to take corrective action and prevent future accidents.
Norfolk Southern fails to conduct a root cause analysis of grade crossing collisions;
choosing instead to blame the diver. This adversarial position prevents the railroad
from directing resources at the root cause of collisions. NS knows how to prevent
grade crossing collisions. It simply ignores what it knows and continues to endanger
the motoring public. In my opinion, in this case NS failed to conduct a root cause
analysis because it would have pointed the finger back at their failure to either close or
upgrade the safety at this extra-hazardous crossing.

Norfolk Southern failed to conduct any public education Operation Lifesaver program or
Grade Crossing Collision Investigation Course in Montpelier or Blackford County.

Norfolk Southern knows the importance of keeping accurate records and documenting
accidents. Even so, it failed to timely report the change in signal conditions and the
train speed increase at High St. to the FRA.

Norfolk Southern failed to learn from previous grade crossing collisions. The railroad
should have looked at High St. and noted the limited sight distance, its close proximity
to crossings on either side, and the total nurnber of crossings in 6/10 of a mile. The
railroad should have proposed a corridor project in Montpelier which would have
identified High St. as a closure candidate or a location to be upgraded to gates.

This definitely should have been done when the signals at either Windsor St. or
Huntington St. were upgraded but could have been done at any time. Instead Norfolk
Southern ignored its own 400 policies regarding crossing improvements and/or closure.
This tragedy could have been prevented if NS had followed its own policies and
procedures.

Norfolk Southern failed to monitor how train crews sound the horn approaching grade
crossings. The horn should be sounded consistently and in accordance with the FRA
tule. NS’ lack of training and supervision led to the horn not being sounded correctly
prior to this collision which contributed to cause this tragedy.

12



for the motorist which made this crossing extra-hazardous. If these safety principles
had been followed, High St. should have been closed or upgraded with gates years
before. If that had been done, this collision would not have occurred.

Norfolk Southern Railway and System Safety:

There is no question NS is fully aware of the basic safety principles that make up a
good systern-safety plan. This railroad has an exemplary workplace safety program but
falls short where public safety is concerned.

This railroad has a workplace safety plan for derailment prevention, employee safety,
and the prevention of train-train accidents. There are safety rule books, operating rule
beoks, departmental policies and procedures, timetables, and dispatcher’s bulletins all
designed to prevent workplace injuries and provide for the safe operation of the
railroad. For twenty-two years in a row the railroad was recognized as the industry
leader in having the fewest number of reportable injuries and was awarded the E. J.
Harriman award for its effort.

NS extensively investigates workplace accidents and understands a root cause analysis
is critical to preventing future accidents. Unfortunately, the same criteria do not apply
to highway-rail grade crossing collisions - public safety. There is no root cause analysis
of crossing collisions and NS simply blames the driver. It has not learned from
reviewing previous grade crossing accidents or the extensive studies and publications
available regarding highway-rail grade crossing safety. NS knows what to do, it just
doesn’t. The railroad’s failure to treat public safety with the same time and attention it
gives workplace safety demonstrates its disregard for the motoring public. This case
clearly exemplifies NS’ ongoing disregard for public safety. If NS had performed a root
cause analysis in this case, it would have identified the visual obstruction which
contributed to cause this collision.

Norfolk Southern‘s Public Safety Effort:

On October 8, 1993, then chairman David Goode, wrote a letter to the upper
rnanagement of NS wherein he stated “Grade crossing accidents are also a leading
cause of damage to Norfolk Southern property and delay to NS trains. For the last
several years, NS consistently has had the highest number of crossing accidents and
the worst rate of such incidents among major railroads. This is not acceptable for NS’.
In the letter Goode states “As railroaders, we all should be active participants in grade
crossing safety — as we are in all aspects in safety”. This clearly shows Goode
recognized there is a different approach between workplace safety and grade crossing
safety.



HuGHES CONSULTING
December 23, 2014

Mr. Jeffrey Wrage
Blachly, Tabor, Bozik & Hartman, LLC

56 South Washington, Suite 401
Valparaiso, Indiana 46383
RE: Estate of Janero v. Norfolk Southern Railway Company
Case No. 1:13-cv-00155-TLS-RBC
Dear Mr. Wrage:

I have been retained by your firm to offer an opinion in the above titled case, This case
is the result of a collision that occurred between a passenger vehicle and a Norfolk
Southern freight train on September 3, 2011. This report will summarize my findings
based on my training and experience combined with the information you provided and a
site visit conducted on December 12, 2014. I reserve the right to amend this report
should additional information become available.

Twas employed for thirty-two years by Norfolk Southern Railway (Norfolk Southern),
The first twenty-two years I worked as a Railroad Police Officer and rose to the rank of
Lieutenant, I developed Norfolk Southern’s first Grade Crossing Collision Investigation
Course and subsequently trained eleven other railroad police officers to teach the
course over Norfolk Southern’s 22 state system. I received the Virginia Governor's
Transportation Safety award for that work. For ane year I was the System Manager of
Operation Lifesaver and was also involved in employee safety training. 1 directed the
effort of all Operation Lifesaver State Coordinators and was a level IIT — Operation
Lifesaver train the trainer. My last nine years I was the Western Region Manager of
Grade Crossing Safety and was responsible for all grade crossing matters on four
operating divisions in ten states. 1 proposed and brought to fruition the railroad
industry‘s first of a kind statewide corridar project in Mississippi which impacted the way
railroads approached the closure and signalization of highway-rail grade crossings. My
interaction with state Departments of Transportation officials, local, state, and federal
officials, the Federal Railroad Administration (FRAP) and the National Transportation
Safety Board (NTSB) as well as my attendance at a variety of grade crossing safety
conferences and training sessions, both as a presenter and attendee, have provided me
extensive knowledge regarding highway-rail grade crossing safety.

132 Windsor Court Roanoke, VA 24019
Office: 540-966-6003 a Fax: 540-966-6003 w Mobile: 540-525-4209 hconsulting@ntelos.net



2. Supervisor Safety — 8/95 to 2/97
Responsible for the Operation Lifesaver Program, various NS safety issues, and
safety training on NS’ system
A. Certified as a Level 3 Operation Lifesaver Trainer
B. Member of the Operation Lifesaver Boards of Directors in GA, NC, VA, OH,
SC, IL, and IN
C. Presenter at the Eighth Annual Region IV Rail Highway Safety Conference in
AL
3. Railroad Police ~ 3/73 to 8/95
Worked in areas of increasing responsibility attaining the rank of Lieutenant.
Certified Police Instructor in Search & Seizure, Laws of Arrest, Drugs & Alcohol
and Firearms. Responsible for investigations dealing with vandalism, theft, fraud,
internal matters, and the warning, ejecting, and arrest of trespassers.

A. Developed NS’ first Grade Crossing Collision Tavestigation Course including
training eleven NS police instructors. Received a quality achievement award for
the project.

B. Worked on developing a NS video — Off Limits — dealing with trespassing on
railroad tracks

C. Received the Virginia Governor’s Safety Award for my work on NS’ Grade
Crossing Collision Investigation Course

D. Served as Chairman of the Railroad Section of the Virginia Safety

Association’s 55" Annual Conference

Activities

Duval Lodge #159 F&AM (Past Master, 1979)

Past Vestry member ~ St. Augustine’s Episcopal Church, Augusta, GA (1985)

Assoc. of American Railroads — Police Security Section, Past Chairman Region II
Metro Richmond Chamber of Commerce, Past Chairman ~ Public Safety Committee
(1988 & 1989)

Virginia State Chamber of Commerce, Criminal Justice & Transportation Committees
Roanoke Regional Chamber of Commerce, Past Chairman of Transportation Committee
(1993 & 1994) and Legislative Committee (1995)

Served on New Century Council, Past Chairman of Transportation Sub-Committee
(1994-95)

Botetourt County Planning Commission, 10/00-04/14, Chairman (1/05 — 1/07)


In 1993 Norfolk Southern proposed the High St. crossing be closed but never followed
through. Once again NS failed to follow its 400 policies and procedures.

Norfolk Southern failed to properly train its employees to identify hazardous conditions
at highway-rail grade crossings. There is no indication any train crew or track inspector
reported the limited sight distance at High St. In fact Conductor Barnes stated he didn’t
see anything that would “obstruct to see a train coming”.

Norfolk Southern should have utilized its knowledge of driver behavior and its
experience from previous grade crossing collisions to proactively make this highway rail
grade crossing safer. Its failure to use that knowledge, failure to properly train and
supervise it employees, and failure follow its own rules directly resulted in this horrific
tragedy that caused the loss of Thomas Janero’s pregnant wife and infant son. High St.
should have been closed or upgraded years before this collision.

Respectfully submitted,

Wi
n ra I -
Williarn R. Hughes
Hughes Consulting

13



1. The first component is to identify hazards associated with the task(s) to be
performed, product, or process being undertaken. In this case we will focus on
highway-rail crossings and public safety.

2. The next component in system safety is to develop plans to mitigate those
hazards; the methodology used is often referred to as the Fundamental
Principles of Safety or the Safety Hierarchy, which was first promulgated by the
National Safety Council in the early 1920's. In short, this is a three level
hierarchal process: (1) Safety by Design, wherein the system is redesigned so as
to either eliminate/minimize the hazard or remove the person from the
immediate vicinity of the hazard; (2) Guarding, wherein a barrier or guard is
placed between the person and the hazard; and (3) Persuasion Control, wherein
techniques such as warnings, training, instructions, and the like are used to
“persuade” those that interact with the system to behave in a manner that will
minimize the risk associated with the hazard.

3. The next component of system safety is to implement the plan which is done by
issuing written instructions and training employees and supervision with respect
to the plan. The plan must be enacted and supported from the highest level of
management, and communicated down so the entire workforce is included in the
process. Effective enforcement of the plan is crucial to its success.

4. The fourth component in system safety is to evaluate the plan to be sure the
rules/procedures put in place are being properly implemented and are effective
in mitigating the hazard.

5. Documentation is the final component in system safety. One of the important
aspects of the docurnentation component is to ensure all accidents/injuries are
thoroughly and properly investigated and evaluated so the plan can be
altered/improved to prevent future similar recurrences. A root cause analysis is
a critical part of the documentation process. Norfolk Southern understands it is
vital to know actuai underlying causation and that accidents can have more than
one cause.

Unfortunately, NS tends to focus primarily on safety for employees and train
movements (workplace safety) with much less attention given to highway-rail grade
crossings (public safety). Contrary to the basic tenants of system safety, NS blames the
driver for virtually all collisions occurring at highway-rail grade crossings. This approach
is adversarial and counterproductive to improving the public safety component of
system safety because the railroad neglects to identify the root cause of such horrific
collisions. That is exactly what occurred in this case. NS violated these basic safety
principles. In this case, the permanent structure at High St. created a sight obstruction

3



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

THOMAS A. JANERO individually, and
THOMAS A. JANERO, personal
Representative of the Estates of
Christian M. Janero and Xander D.
Janero

CAUSE NO. 1:13-CV-155-TLS-RBC

vs.

NORFOLK SOUTHERN RAILWAY

)

)

)

)

)

Plaintiffs, )

)

)

COMPANY )
)

Defendant.

AFFIDAVIT OF WILLIAM R. HUGHES

1, WILLIAM R. HUGHES, being first duly sworn upon my oath, depose and state
as follows:

1. | am an adult, legally competent to testify, and all matters and opinions
stated herein are based on my personal knowledge and are true and accurate to the
best of my knowledge and belief.

2. A true and accurate copy of my curriculum vitae is attached as Exhibit “A”
to this affidavit.

3. A true and accurate copy of my December 23, 2014 Expert Report is
attached as Exhibit “B" to this affidavit.

4, A true and accurate copy of my September 11, 2015 Supplemental Expert
Report is attached as Exhibit “C” to this affidavit.

5. i have previously been qualified and testified in numerous State and
Federal Courts as an expert witness.

FURTHER AFFIANT SAYETH NOT.



the problem. There is nothing in the file to indicate any Operation Lifesaver program
was presented in Montpelier or any crossing blitz conducted at High St.

Operation Lifesaver also conducts a Grade Crossing Collision investigation Course for
police departments and first responders. Again, there is nothing in the file to indicate
any such program was ever conducted in Montpelier or Blackford County. The
investigating officer, Jeff Sones, never testified to receiving any such training or having
knowledge such training existed.

NS failed to follow its own policy and procedures. If it had, High St, would have been
closed or upgraded and this tragedy prevented

High Street, DOT #475156L

High Street is a local two lane road in Montpelier, IN, with an average daily traffic count
{ADT) of 170 cars (2002 count). The roadway is brick from the crossing to the next
intersecting road on each side, Jefferson St. to the east and Grant St. to the west. The
U.S. DOT — Crossing Inventory Information records at the time of the crash show there
were 28 trains a day over the crossing with a maximum timetable speed of 60 mph.
The information in the Crossing Inventory is provided to the Federal Railroad
Administration (FRA) by both the railroad and the state whenever a change is made to
the crossing or the roadway characteristics.

Those same Inventory records for the period of 4/1/1986 to 3/8/1988 indicate the
crossing was equipped with one cantilevered signal. A cantilever signal extends over
one lane of the road and is equipped with a flashing red light and a bell. The report
does not show on which side of the crossing the signal was installed. The inventory
report from 4/15/1997 to 6/12/2002 was changed to show there were two mast
mounted flashing lights at the crossing implying the cantilever signal was replaced by
the flashing lights.

This data conflicts with documents in the file, RFP-2 and RFP-5. Those records show in
1983 NS approached the town of Montpelier regarding a speed increase from 40 mph to
60 mph. The town was in agreement provided NS replaced the outdated wig-wag
signals with more modern flashing light signals. NS agreed to the proposal and
completed an AFE to fund the project using 100% railroad money (RFP-2). A document
in RFP-5 shows flashing light signals were placed in service on November 21, 1988.
There is no explanation for why the signals were in service in 1988 but not properly
fisted on the Inventory Report until 1997. This reflects NS’ attitude toward accurate
reporting even though it knows the priority rankings depend on the information
reported. It’s logical to conclude the speed increase took place soon after the flashers
were put into service but that increase was not changed on the Inventory Report until
2002; another indication of inaccurate NS reporting.



As a result, corporate policy 963 was issued on October 29, 1993, and the System
Grade Crossing Oversight Committee was charged with the administration of reducing
highway-rail grade crossing collisions. This policy authorized the use of company funds
if necessary to mitigate hazardous conditions. The policy stated “it is in the public
interest and the corporation‘s to participate actively in identifying hazardous conditions,
making such conditions known to government officials and implementing appropriate
corrective measures”. Also, “All NS employees are expected to be active participants in
our grade crossing safety efforts and may be called upon for assistance at any time. In
particular, Operations Division Safety Teams and individual personnel are responsible
for identifying conditions which could interfere with the ability of a motorist to
appreciate the potential hazard of an approaching train”.

In 1996 the Grade Crossing Safety Department was formed to further pursue the
reduction of grade crossing collisions and the elimination of redundant crossings. The
department was tasked with working with the operating divisions, state departments of
transportation, and local and state elected officials to achieve the corporate goal of
reducing the number of grade crossing incidents.

Corporate Procedures 400, 400.1, 400.2, and 400.3 were written to govern the way the
Grade Crossing Safety Department operated. Those procedures have been amended
from time to time but are still in effect.

Policy 400 sets forth the railroad’s corporate position on grade crossing safety and its
willingness to work with states to develop closures and crossing improvements. It also
states the railroad is willing to use its own funds to bring projects to completion. The
policy establishes the Grade Crossing Safety Group, with oversight from the System
Grade Crossing Oversight Committee, as the principal liaison between the railroad’s
departments and government entities to identify projects. Procedure 400.1 provides
guidelines for the formation of Division Grade Crossing/Trespass Safety Committees.
Those committees are tasked with hy-railing various line segments to inspect grade
crossings, identify unsatisfactory conditions at those crossings, and developing solutions
to those conditions. The appropriate department/employee is to be assigned the
responsibility of correcting the noted conditions and is to report back to the committee
the action taken. Procedure 400.2 further details the responsibility of the Division
Grade Crossing/Trespass Committee to identify unsatisfactory conditions. Remedies are
to be proposed solutions pursued both within NS and with outside governmental
authority. This procedure more specifically identifies departmental responsibilities.
Procedure 400.3 sets forth guidelines for NS’ involvement with Operation Lifesaver.

There is no evidence any hy-rail trip was ever conducted over the line segment on
which High St.is located. There is no indication any employee of any of the
departments represented on the Division Grade Crossing/Trespasser Safety Committee
identified the sight obstruction at High St. and as a result nothing was done to correct



The following documents are attached as exhibits to this report:

« :
e Reference material
e List of previous depositions

SYNOPSIS:

At about 11:22 AM, EST, on Saturday, September 3, 2011, a 2004 Pontiac Grand Prix
driven by Rodney R. Brown was traveling westbound on High Street (DOT #475156L,
railroad milepost, 148.97) in Montpelier, Indiana, when it was struck by a southbound
Norfolk Southern (NS) freight train (train no, 25AL003). Besides Brown there were
three passengers inside the vehicle. The crash resulted in the death of Thomas
Janero’s pregnant wife Kristen and his infant son Xander.

According to the Indiana Officer’s Standard Crash Report, local ID 0111002157,
completed by J. Sones of the Blackford County, IN, sheriff's department, the posted
roadway speed was 30 mph. However, there is nothing in the crash report to indicate
how fast Brown’s vehicle was traveling. The DOT/FRA Accident/Incident Report
completed by Norfolk Southern (NS) shows the vehicle speed as 2 mph. A report
completed by Crash Data Retrieval based on data downloaded from the automobile’s
event recorder indicates the vehicle was traveling at 20 mph one second prior to the
crash. The train was going 53 mph which is under the 60 mph maximum timetable
speed.

The crossing is equipped with flashing light signals and an electronic “bell”. There is
disparity regarding whether or not the flashing lights were operating at the time of the
crash and witnesses reported hearing the “bell”, Witnesses also reported hearing the
train horn prior to the crash but neither Brown nor his wife reported hearing the horn or
seeing the activated flashers.

There is no indication drugs or alcohol were a factor for the vehicle driver or train crew.
BASIC SAFETY PRINCIPEES: ..

Norfolk Southern Railway (NS) and all class one railroads, as well as many industries
across the country, adhere to a concept of basic safety principles, sometimes referred
to as system safety, in order to maintain a safe workplace environment. This process is
a necessary part of doing business and extensive training and funding are devoted to
the workplace safety effort.

The general basic safety principles or system safety approach consists of five key
components:



want to control traffic over a crossing. He goes on to say that deals with a non-controlled
intersection and a grade crossing is a controlled intersection. In the same paragraph he says it
doesn’t make sense in the world of old grade crossings. It does make sense in a new grade
crossing in a new world where there wasn’t trees and buildings and mountains. This seems
contradictory and implies he is aware these types of obstructions are a factor for motorists.
Bill acknowledges he gained his knowledge from, among other sources, the Highway Grade
Crossing Handbook, the same handbook that contains the sight distance triangle. Apparently
he can pick and choose what information he deems valid.

One of the things Barringer uses in assessing crossings is “where the motorist would normally
stop to be able to yield to a train”. At passive crossings the motorist is not required to stop
unless he sees or hears an approaching train. Even at flashing light only crossings the motorists
must stop but can then proceed if a train is not in hazardous proximity to the crossing.
Barringer states highway traffic engineers use the sight distance triangle but fails to recognize
the highway-rail grade crossing is also an intersection. He denies anyone in the rail industry
uses the sight distance triangle in the Grade Crossing Handbook, But as previously stated, he
goes on to define clearing sight distance which uses numbers from the Grade Crossing
Handbook. He also says sight distance is not used at diagnostic reviews yet it is clearly listed as
one of the items to consider on the checklist found in the Grade Crossing Handbook.

Like Chwalek and Mason, Barringer fails to acknowledge gates, lights, bells provided for better
warnings. This even though the federal government spends over $200M annually to install
gates at grade crossings.

Barringer incorrectly answered the question regarding the fact | developed Norfolk Southern’s
first Grade Crossing Collision Investigation Course. He talks about it being an industry work
product and mentions the name Pat Samples. To be clear, | did in fact develop Norfolk
Southern’s course patterned after the course developed by Glenn Hunsucker of the then
Aitcheson, Topeka, & Santa Fe and Pat Samples of then BNSF. { used many of their materials,
with permission, and have acknowledged the same many times in depositions. | also trained
other NS police to be instructors.

As part of the course | used, as a handout, the sight distance triangle. This came to me ina
newsletter from Hoy Richards, a consultant who worked with the Texas Transportation
Institute. He published the triangle in a newsletter ad it made sense to me that motorists
needed to see a train approaching the crossing in sufficient time to make a go-no go decision. 1
believed that police officers attending the class needed to know that information in order to
make an accurate report. If the report stated sight distance was a factor, then the railroad
could work with the necessary parties to mitigate the problem. The course was ultimately put
into a loose leaf notebook and the sight distance triangle was included as a tab in the book.
Sometime after that | received a call from Roger Petersen, NS Claims Department, wanting to
know about the triangle. | explained to him what was previously stated and was instructed to
remove the triangle from the book because NS was being sued regarding sight distance.
Because it appeared in the manual, plaintiff's attorneys were saying NS had adopted the



| AFFIRM UNDER THE PENALTY OF PERJURY THAT THE FOREGOING

REPRESENTATIONS ARE TRUE.

Date:
William R. Hughes
STATE OF )
) Ss:
COUNTY OF )

BEFORE ME, the undersigned, a notary public in and for said county and state, this

day of , 2016, personally appeared before me, and acknowledged

the execution of the above instrument to be his/her voluntary act and deed, for the uses and
purposes therein stated.

IN WITNESS WHEREOF, | have hereunto set my hand and official seal the day and
year last above written.

Notary Public

Printed Name
County of Residence:.
My Commission Expires:


limited view of the direction from which the vehicle approached the crossing. He saw
the vehicle for the second time when it passed the building but only for a very short
time, 3-4 seconds, before the crash. Croak stated he stood up because it was apparent
he was going to hit the vehicle and applied the emergency brake almost simultaneously
with the crash. At the time Coak stood up he stated he removed his hand from the
horn lever. He testified he did not see the flashers until he stood up and did not hear
the bell at the crossing because the locomotive horn was blowing. In his deposition it
was not clear if the flashers were working when Coak saw them or he simply observed
their presence out the window. Coak said the horn was blown continuously from the
time he first observed the vehicle on the east side of the building until he stood up just
before the crash. Coak testified he had received no locomotive simulator training that
covered similar emergency situations.

At the time of the crash the train’s speed was 53 mph, below the timetable speed of 60
mph.

Coak stated there was no conversation between him and conductor Christepher Barnes
regarding the vehicle. Barnes was seated on the same side of the locomotive the
vehicle approached from but did not see it because he was looking down reading slow
orders. This is contrary to his responsibility to be vigilant - observe and keep a lookout.
In spite of this knowledge, Coak states in his deposition he thought Barnes was keeping
a proper lookout.

Barnes confirmed he was looking at slow orders and did not see the vehicle but also
states he was keeping a proper lookout ahead. He behaved in this manner even
though he acknowledged the engineer’s view was restricted by the front end of the
locomotive. Barnes had been through Montpelier many times in the past and knew, or
should have known, there were five grade crossings very close together and the safe
course would have been to focus his undivided attention on those crossings. Barnes
stated he knew there was a point in time where there were no crossings and then it
would have been more appropriate to review the slow orders. Barnes is required to
remind the engineer of those orders two miles in advance of when they apply
(Operating Rule 91 (a)). Montpelier was five miles from the slow order location.

After the crash Barnes walked backed to the crossing but did not observe if the crossing
signals were working properly. He is required to obtain information regarding any
witnesses (Operating Rule 0.2.) and at that point becomes a witness himself.

When asked about sight obstructions t the crossings, Barnes said in his opinion he
didn’t see anything “that would obstruct to see a train coming”. He acknowledges he
knew the building was there and that it could “to a point” obstruct the vision of anyone
operating a train for vehicles approaching the tracks. In his opinion “there’s still plenty
of room for motorists to visually see in that direction of a train coming”. Barnes testified

9



Given the various ways the train horn was sounded in the video, NS failed to properly
train and supervise its employees as to how to properly sound the horn when
approaching public grade crossings. The engineer's failure to properly sound the horn in
this case led to an insufficient warning to the oncoming driver which contributed to the
cause of the 9/3/11 collision.

DRIVER BEHAVIOR:

Neither Rodney nor Angela Brown testified to seeing or hearing the approaching train.
Numerous studies have been done regarding driver behavior at grade crossings and
would provide an explanation as to why this happened i.e. driver inattention,
distractions inside the vehicle — adjusting controls, radio/cd, conversation with
passengers, cognitive activities (daydreaming), cell phone usage, or simply the multi-
task requirements of driving — maintaining a safe peed, checking mirrors, looking at the
roadway conditions, looking for oncoming traffic, staying in the proper lane, etc.

Drivers are rational but imperfect decision makers. Decisions are not made solely on
the information at the crossing but include the driver's perceptions and experiences.
This includes any experience with the crossing and the likelihood of an approaching
train. Age is also a factor. Brown was 29 years old at the time of the accident. His
wife, a family friend, and her infant child were in the vehicle. These facts do not put
Brown in the category as a risk taker.

In the rail view video there was a vehicle approaching the crossing from the opposite
direction. It’s logical to conclude Brown's attention was diverted to that vehicle in order
to determine whether both vehicles would arrive at the crossing at the same time and
whether the crossing was wide enough to accommodate both vehicles passing over the
tracks at the same time.

Sight distance was limited because of the building in the northeast quadrant. The
building was 42 feet from the tracks and prevented any driver from seeing an
approaching train until past the building. Studies show drivers need at least 2/2
seconds perception/reaction time to make a decision as to whether to proceed or stop.
Based on the Crash Data Retrieval report the vehicle was travelling at 23 mph two
seconds before the crash. At this speed, given the train speed of 53 mph, a motorist
would need approxirnately 520 feet of sight distance 135 feet from the tracks. At this
location, two seconds from the track, there was 121 feet of sight distance. Nowhere
near the distance recommended by the sight distance chart.

Limited sight along the track when approaching the crossing hinders the driver's ability
to detect an oncoming train. Drivers must be able to see and/or hear an approaching
train in sufficient time to make the decision whether to stop or proceed safely across
the tracks. Various studies highlight the importance of adequate sight distance and the

an



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

THOMAS A. JANERO individually, and
THOMAS A. JANERO, personal
Representative of the Estates of
Christian M. Janero and Xander D.
Janero

CAUSE NO. 1:13-CV-155-TLS-RBC

VS.

NORFOLK SOUTHERN RAILWAY

)

)

)

)

)

Plaintiffs, )

)

)

COMPANY )
)

Defendant.

AFFIDAVIT OF WILLIAM R. HUGHES

|, WILLIAM R. HUGHES, being first duly sworn upon my oath, depose and state
as follows:

1. | am an adult, legally competent to testify, and all matters and opinions
stated herein are based on my personal knowledge and are true and accurate to the
best of my knowledge and belief.

2. A true and accurate copy of my curriculum vitae is attached as Exhibit “A”
to this affidavit.

3. A true and accurate copy of my December 23, 2014 Expert Report is
attached as Exhibit “B” to this affidavit.

4. A true and accurate copy of my September 11, 2015 Supplemental Expert
Report is attached as Exhibit “C” to this affidavit.

5. | have previously been qualified and testified in numerous State and
Federal Courts as an expert witness.

FURTHER AFFIANT SAYETH NOT.


| AFFIRM UNDER THE PENALTY OF PERJURY THAT THE FOREGOING

REPRESENTATIONS ARE TRUE.

Date: Y 2-204 is CPYL Vz

William R. Hughes

STATE OF_Vic asad )
) ss:

COUNTY OF _Baitelancet )
BEFORE ME, the undersigned, a notary public in and for said county and state, this
day of _ Nocc\ , 2016, personally appeared before me, and acknowledged

the execution of the above instrument to be his/her voluntary act and deed, for the uses and
purposes therein stated.

IN WITNESS WHEREOF, | have hereunto set my hand and official seal the day and

year last above written.
lolary Public

Sarcantna L daunes
Printed Name ‘

County of Residence: _Bayevou +
My Commission Expires:_1)-30: 3090

Samantha L. Joynes
Notary Public
Commonwealth of Virginia
Registration #7673094
My commission expires November 30, 2020



The crossings on either side of High St., Windsor St. to the north (DOT #4751577) and
Huntington St. to the south (DOT #4751556), are equipped with gates, lights, and
bells. Huntington St. is also equipped with cantilever signals. The DOT Inventory
Reports show both of these crossings had mast mounted flashing lights on 12/1/1976,
the earliest dated Inventory Report for High St. it's likely the flashing light signals were
installed prior to that date. Based on the Inventory Report, Windsor was upgraded to
gates in April 1997 and Huntington was upgraded in 1985.

FRA records show no collisions at Windsor St., one at Huntington St. (2014), and only
one at High St., the subject collision. Over time Huntington St. had a significant
increase in ADT which would justify the signal upgrade at that location. The feed milf
at Windsor creates a similar sight obstruction to the structure at High St. so it’s
reasonable to think if the conditions are the same at both crossings, both should have
been upgraded. The flashing light portion of the signals, the roundels, at the time of
the crash were eight inch roundels. They were the same size when I conducted my
site visit on December 12, 2014. Twelve inch roundels are considered more visible and
the preferred industry choice. NS should have upgraded the roundels on the High St.
signals long before this collision occurred.

Typically federal funds (Section 130) are used to pay for installing signals at a crossing.
Those funds are administered by the state DOT and are allocated according to the
state’s crossing priority ranking developed by using an accident prediction formula
developed by the FRA. However, railroads have the ability to install signals using their
own money as NS did with the flashing light signals at High St. in 1988. Further, before
federal funds are allocated to a signal project, a diagnostic review is conducted. This
involves a diagnostic team - someone from the state DOT, the road authority, and the
railroad meeting at the crossing to determine the appropriate device to be installed. If
federal funds were used for signals at Huntington and/or Windsor Streets, the
diagnostic team(s) should have considered Montpelier for a corridor project and looked
at all crossings in the area as either closure candidates or to be upgraded with gates.
Apart from the diagnostic team, NS could have done a review on its own and then
worked with the state and local community to implement a corridor project.

There is a house very close to the tracks in the northeast quadrant of High St. that
lirnits the sight distance to the north. That hazardous condition should have been noted
by NS’ passing trains crews, 28 a day at the time of the collision, by the maintenance of
way department who patrols that line twice a week (who also participates as a member
of the Division Grade Crossing Safety/Trespass Committee), or by any group hy-railing
that line segment for any other purpose. If the obvious sight obstruction had been
observed and reported, NS would have discussed how to improve the condition and
taken appropriate action. Instead, either no one observed the condition or, if they did,
NS failed to take any action in violation of its corporate policy and procedures.



he had no knowledge of any instructions regarding the reporting of crossings having
visual obstructions.

Conductor Barnes is an example of NS’ failure to properly train its employees regarding
what constitutes a hazard at grade crossings. Further, NS’ failed to train and/or
supervise its employees regarding compliance with the Operating Rules as those rules
apply to reporting unsafe conditions at grade crossings and maintaining a vigilant
lookout - Operating Rules F, J, O(2), GR-27, 80, 91a), 98, 582, and 817. The railroad
also failed to train its employees to recognize what constitutes hazardous conditions; in
this case a sight obstruction.

HORN:

The use of train horn is governed by the FRA under CFR 49-222.21. The horn is
required to be blown for no less than 15 seconds nor more than 20 seconds when the
train is approaching highway-rail grade crossings. Trains travelling at or more than 60
mph are required to start sounding their horn % mile before arriving at the crossing.

Looking at the rail-view video, Engineer Coak did not sound the train horn consistently
at the six crossings shown in the video. At Windsor St., the crossing just before High
St., he sounded the horn for two seconds, then three seconds, then two blasts for ¥2
second each. However, there was a glitch in the video at Windsor St. which may have
affected the viewer's ability to accurately determine what actually took place. After
Windsor the horn was sounded for three seconds, a pause, then again for four seconds
just prior to the crash. The horn was not being sounded as the train crossed High St.
This may be explained in Coak’s deposition when he stated he stood up just prior to the
crash and may have stopped sounding the horn. This rule states the horn must be
sounded in a pattern of two long blasts, a short blast, and a long blast that must be
sounded until the locomotive occupies the crossing.

An off duty police officer Mike Wilson, Hartford City Police Department, was about a
block behind the Brown vehicle and witnessed the crash. Wilson stated he heard the
train's horn once before the accident and again immediately before the crash.

Neither Rodney Brown nor Angela Brown heard the horn.

Train horns studies dating from 1967 indicate the horn is not a satisfactory primary
warning device, These studies cover the type of horns installed on locomotives, where
the horns are mounted, the horn’s decibel level, the insertion tevel in the vehicle, and
noise inside the vehicle ~ heater/air conditioner on, radio playing, conversation, road
noise, etc. If the horn is not heard by the driver of the vehicle and recognized as a
warning, it is not effective.

10