Petition for Writ of Certiorari — Bradley LeDure, Petitioner v. Union Pacific Railroad Company

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Seventh Circuit, LeDure v. Union Pac.

R.R. Co., No. 19-2164 (June 17, 2020) ...................... App. 1

Memorandum and Order of the United States

District Court for the Southern District

of Illinois Granting Motion for Summary

Judgment, LeDure v. Union Pac. R.R. Co., No.

3:17-cv-00737 (January 31, 2019) .............................. App. 7

Memorandum and Order of the United States

District Court for the Southern District of

Illinois Denying Motion to Alter or Amend,

LeDure v. Union Pac. R.R. Co., No. 3:17-cv00737 (May 20, 2019) ................................................ App. 23

Order of the United States Court of Appeals

for the Seventh Circuit Denying Rehearing,

LeDure v. Union Pac. R.R. Co., No. 19-2164

(July 16, 2020) ........................................................... App. 29

Statutes and Regulations Involved: ........................ App. 31

45 U.S.C. §51........................................................ App. 31

45 U.S.C. §53........................................................ App. 32

45 U.S.C. §54a...................................................... App. 32

45 U.S.C. §20301.................................................. App. 33

45 U.S.C. §20302.................................................. App. 33

45 U.S.C. §20701.................................................. App. 36

49 C.F.R. §229.1 ................................................... App. 36

49 C.F.R. §229.21 ................................................. App. 36

49 C.F.R. §229.119 ............................................... App. 38

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 19-2164

BRADLEY LEDURE,

Plaintiff-Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:17-cv-00737-JPG-GCS — J. Phil Gilbert, Judge.

Argued February 12, 2020 — Decided June 17, 2020

Before: BAUER, KANNE, and BARRETT, Circuit Judges.

BAUER, Circuit Judge. Bradley LeDure, a conductor

for Union Pacific Railroad Company, slipped and fell

while preparing a locomotive for departure. LeDure

brought suit for negligence against Union Pacific under

the Locomotive Inspection Act and the Federal

Employers’ Liability Act. The district court granted

summary judgment for Union Pacific. It found the

Locomotive Inspection Act inapplicable and then

determined that LeDure’s injuries were otherwise

unforeseeable because he slipped on a small “slick

spot” unknown to Union Pacific. For the following

reasons, we affirm.

App. 2

I. BACKGROUND

On August 12, 2016, at about 2:10 a.m., LeDure

reported to work at a rail yard in Salem, Illinois. His job

was to assemble a train for a trip to Dexter, Missouri. The

first step was to determine how many locomotives were

necessary and tag each one to indicate whether or not

they would operate.

Three locomotives were coupled together on

a sidetrack. The locomotives arrived at 2:00 a.m.

from Chicago, Illinois. LeDure decided that only one

locomotive would be powered on. LeDure tagged the

first locomotive for operation and the second for nonoperation. He moved to the final locomotive, UP5683, to

shut it down and tag it accordingly.

While on the exterior walkway of UP5683, LeDure

slipped and fell down its steps. LeDure got up and

proceeded to power down and tag the locomotive.

He returned to where he fell and, using a flashlight,

bent down to identify a “slick” substance. LeDure

reported the incident to his supervisor. He gave a written

statement before going home. Union Pacific conducted

an inspection and reported cleaning a “small amount of

oil” on the walkway.

LeDure sued Union Pacific for negligence. He alleged

violations of the Locomotive Inspection Act and the

Federal Employers’ Liability Act, arguing that Union

Pacific failed to maintain the walkway free of hazards.

Both parties moved for summary judgment. The district

court agreed with Union Pacific and dismissed LeDure’s

claims with prejudice. The court found the Locomotive

Inspection Act inapplicable since UP5683 was not “in

use” during the incident. It also held LeDure’s injuries

were not reasonably foreseeable because they resulted

from a small “slick spot” unknown to Union Pacific.

App. 3

LeDure moved to alter or amend the judgment, and the

court denied the motion. LeDure timely appealed.

II. DISCUSSION

We review de novo the grant of summary judgment.

Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir.

2019). Summary judgment is required if “there is no

genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). A court will grant summary judgment against a

party “who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at

trial.” Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th

Cir. 2005).

The Locomotive Inspection Act and the Federal

Employers’ Liability Act together provide redress for

injured railroad workers. Specifically, the Locomotive

Inspection Act supplements a Federal Employers’

Liability Act negligence claim. The Locomotive

Inspection Act delegates authority to the Secretary of

Transportation to create regulations delineating the safe

“use” of locomotives. 49 U.S.C. § 20701. If the plaintiff

shows a regulatory violation, this establishes negligence

per se. The plaintiff must still show, per the Federal

Employers’ Liability Act, the injury resulted “in whole

or in part” from this negligence. Crane v. Cedar Rapids

Iowa City Ry., 395 U.S. 166 (1969) (citing 45 U.S.C. § 51).

The first question for the Locomotive Inspection Act

is whether the locomotive was “in use” at the time of the

accident. Brady v. Terminal Rail Ass’n of St. Louis, 303

U.S. 10, 13 (1938); Lyle v. Atchison T. & S.F. Ry. Co.,

177 F.2d 221, 222 (7th Cir. 1949). The district court noted

the circuit courts’ various tests. For instance, while the

Fourth Circuit created a totality of the circumstances

App. 4

analysis, the Fifth Circuit has said a locomotive is “in

use” if it is assembled and the crew has completed predeparture procedures. Deans v. CSX Transportation,

Inc., 152 F.3d 326, 329 (4th Cir. 1998); Trinidad v.

Southern Pacific Transportation Co., 949 F.2d 187, 189

(5th Cir. 1991).

In determining that UP5683 was not in use, the

district court properly applied Lyle and its holding that

“to service an engine while it is out of use, to put it in

readiness for use, is the antithesis of using it.” Lyle, 177

F.2d at 223. LeDure essentially seeks to limit this holding

to say a locomotive is not “in use” only when it is being

repaired, but this is an unduly narrow reading of Lyle

and its progeny. See Tisneros v. Chicago & N.W. Ry. Co,

197 F.2d 466 (7th Cir. 1952). The district court reasoned

that UP5683 was stationary, on a sidetrack, and part of a

train needing to be assembled before its use in interstate

commerce. For those reasons, we agree it was not “in

use” and that the Locomotive Inspection Act and its

regulations are inapplicable.

LeDure argues that Union Pacific is nevertheless

liable because it did not clean up the slick spot or

alternatively because UP5683’s walkway traction was not

adequately maintained. For claims about unsafe work

conditions, an essential element of a Federal Employers’

Liability Act claim is foreseeability, or whether there

were “circumstances which a reasonable person would

foresee as creating a potential for harm.” Holbrook v.

Norfolk Southern Ry. Co., 414 F.3d 739, 742 (7th Cir.

2005) (quoting McGinn v. Burlington N. R.R., 102 F.3d

295, 300 (7th Cir. 1996)). The plaintiff “must show that

the employer had actual or constructive notice of those

harmful circumstances.” Id. (citing Williams v. Nat’l

R.R. Passenger Corp., 161 F.3d 1059, 1063 (7th Cir.1998)).

App. 5

The district court correctly held that LeDure failed

to provide evidence sufficient to prove his injuries were

reasonably foreseeable. Whereas the Holbrook plaintiff

identified the potential source of oil he slipped on,

LeDure does not claim Union Pacific had notice of the

slick spot or any hazardous condition that could have

leaked the oil. Instead, he argues that Union Pacific

should have inspected UP5683 and cleaned the spot

beforehand. But, as in Holbrook, there is no evidence that

an earlier inspection would have cured the hazard. This

is problematic when LeDure testified the spot was small,

isolated, and without explanation. Under these facts, a

jury could not find Union Pacific knew or should have

known about the oil or its hazard to LeDure.

Finally, LeDure argues the district court failed to

address his argument that UP5683’s walkway was not

adequately maintained. This is inaccurate. LeDure

introduced pictures of UP5683’s walkway two years after

the incident and pictures of another locomotive walkway

that did not use metal studs for traction. As the district

court noted, LeDure presented evidence to support a

design-defect theory but nothing to show negligence.

Just as importantly, the cause of his injury was

undisputedly the slick spot and there is no evidence—

aside from LeDure’s lay testimony—to suggest the

alternate design pattern could have prevented his injury.

III. CONCLUSION

We conclude that the Locomotive Inspection Act and

its regulations are inapplicable since UP5683 was not

“in use” at the time of LeDure’s injury. We further hold

that LeDure’s injuries were not reasonably foreseeable

under the Federal Employers’ Liability Act and thus

Union Pacific breached no duty of care. For those

reasons, we AFFIRM the grant of summary judgment for

Union Pacific.

App. 6

App. 7

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Case No. 3:17-cv-00737-JPG-GCS

BRADLEY LEDURE,

Plaintiff,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, DISTRICT JUDGE

Plaintiff Bradley LeDure was injured on the job.

He then brought suit against his employer—Union

Pacific Railroad Company—arguing that he is entitled

to damages under the Federal Employers’ Liability Act.

The parties have now filed cross-motions for summary

judgment, and in their aftermath, the Court GRANTS

summary judgment in favor of Union Pacific.

I. BACKGROUND

At 2:10 AM on a summer morning, Bradley LeDure—

an engineer for Union Pacific Railroad Company—

showed up for work at the train depot in Salem, Illinois.

(LeDure Dep., ECF No. 49-1, 77:3–78:17.) LeDure’s

assignment that morning was a train that arrived the

previous day and was now sitting on the “back track” of

the depot: a dimly lit separate track that diverges from

the main track at north end of the depot, runs around the

back side of the yard, and reattaches back at the south

App. 8

end of the depot. (Id. at 79:13–21; 88:10–16; Steve Hotze

Dep., ECF No. 55-2, 21:9–23:6.) This particular train had

three locomotives—the cars that generate power to pull

the entire train along—leading it. (LeDure Dep., ECF No.

49-1, 81:14–17.)

LeDure needed to do a few things with the train that

morning. First, he needed to determine how many of

the three locomotives should be powered on in order

to provide enough juice for the train’s next trip. (Id. at

77:15-22.) Second, he needed to physically enter the

cab on each locomotive, turn the locomotive on or off

according to how much power was needed, and place a

tag indicating as such for the engineer at the next station.

(Id. at 76:8–12; 77:8–14; 77:23–78:12.) And third, LeDure

and some of his coworkers had to make a few moves in

the yard to add and/or remove certain cars from the train

to get it ready for its next trip. (Id. at 83:8–15.) So here,

LeDure determined that only the first locomotive needed

power, and he climbed aboard with his flashlight to begin

the tagging process.

The problem in this case is that LeDure slipped while

on the walkway of the third locomotive—owned by

Union Pacific—allegedly leading to serious injuries of his

“shoulders, spine, back, neck, left and right hand/fingers,

and head[.]” (Id. at 98:18–99:17; Am. Compl. ¶ 11, ECF

No. 22.) LeDure says that he did not see anything before

his fall—and even that he stood right back up afterwards,

entered the cab, and tagged it. (Id. at 105:8–13; 108:21–

109.17.) LeDure then walked back to where he fell and

“kind of lean[ed] over and get the light down closer

to it [and] notice[d] that there was a little something

there”—“a greasy or oil-type substance.” (Id. at 85:5–6,

110:16–24.) LeDure specifically testified:

A. I don’t know exactly what the substance was,

but it was greasy like.

App. 9

Q. Grease and oil are two different things. So I just

want to make sure, are you saying it was like

grease? Or was it more like oil?

A. I don’t know what the substance was exactly.

I have no idea to tell you if it was a certain

substance or another substance.

Q. Did you reach down and touch it at all?

A. Yes.

Q. What did it feel like?

A. It was slick.

Q. So it felt like it was slick?

A. Uh-huh.

Q. So more like an oil?

A. I don’t know. I don’t know exactly what the

substance was. I would be speculating to

answer that question.

(Id. at 85:5–24.)

LeDure then said that he did not know where the

substance could have come from. (Id. at 6–10.) And a

corporate designee for Union Pacific later confirmed

that there were no components in the architecture of the

locomotive near that area that could have leaked and

caused the “slick spot.” (Thomas Kennedy Dep., ECF

No. 49-5, 42:1–12.) Regardless, LeDure continued with

his morning duties, rearranged some cars on the train

with a coworker, parked the train—and then reported his

injuries to Union Pacific and went home. (LeDure Dep.,

ECF No. 192:12–194:7, 194:8–196:5, 84:16–85:1.)

Later, LeDure sued Union Pacific in this Court for

violations of two interrelated statutes:

App. 10

(1) the Federal Employers’ Liability Act, 45 U.S.C.

§§ 51–60; and (2) the Locomotive Inspection Act, 49 U.S.C.

§§ 20701–03. LeDure’s specific theories are numerous—

he says that Union Pacific failed to maintain the train in

a condition that was safe to operate; failed to adequately

inspect the train; failed to provide him with a safe place,

conditions, and equipment to work; failed to properly

treat the floors of the train and provide secure footing;

and more. Both parties have now filed cross motions for

summary judgment.

II. LEGAL STANDARDS

The Court must grant summary judgment “if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(a); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes

Wheels Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).

The Court must construe the evidence in the light most

favorable to the nonmoving party and draw all reasonable

inferences in favor of that party. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener,

520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.

The initial summary judgment burden of production

is on the moving party to show the Court that there

is no reason to have a trial. Celotex, 477 U.S. at 323;

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013).

When responding to a motion for summary judgment, the

nonmoving party may not simply rest upon the allegations

contained in the pleadings, but must present specific

facts to show that a genuine issue of material fact exists.

Celotex, 477 U.S. at 322– 26; Anderson, 477 U.S. at 256–57;

Modrowski, 712 F.3d at 1168. A genuine issue of material

fact is not demonstrated by the mere existence of “some

alleged factual dispute between the parties,” Anderson,

477 U.S. at 247, or by “some metaphysical doubt as to the

App. 11

material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine

issue of material fact only exists if “a fair-minded jury

could return a verdict for the [nonmoving party] on the

evidence presented.” Anderson, 477 U.S. at 252.

III. ANALYSIS

The two statutes at issue here—The Federal

Employers’ Liability Act (FELA) and the Locomotive

Inspection Act—work in tandem. FELA is a “broad

federal tort remedy for railroad workers injured on the

job.” Crompton v. BNSF Ry. Co., 745 F.3d 292, 296 (7th

Cir. 2014) (quoting Williams v. Nat’l R.R. Passenger

Corp., 161 F.3d 1059, 1061 (7th Cir. 1998)). The standards

are simple: a plaintiff must prove the elements of

negligence—duty, breach, cause, and harm—in order

to prevail. Id. (citing Fulk v. Illinois Cent. R.R. Co., 22

F.3d 120, 124 (7th Cir. 1994)). But FELA comes with a

gift to plaintiffs: their burden of proof on the element

of causation is even lower than standard negligence.

CSX Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011).

This standard of proof is so low, in fact, that the Seventh

Circuit has repeatedly referred to it as “scarcely more

substantial than pigeon bone broth.” Green v. CSX

Transp., Inc., 414 F.3d 758, 766 (7th Cir. 2005) (quoting

Harbin v. Burlington Northern R.R. Co., 921 F.2d 129,

132 (7th Cir. 1990)).

The Locomotive Inspection Act, on the other hand,

is a supplemental amendment to FELA that imposes

specific duties on railroad carriers—and it does so by

delegating authority to the Secretary of Transportation

to promulgate regulations dealing with the safe “use”

and operation of locomotives. 49 U.S.C. § 20701. Ward v.

Soo Line R.R. Co., 901 F.3d 868, 873 (7th Cir. 2018), reh’g

denied (Sept. 21, 2018). Specifically, if a plaintiff shows

that a railroad carrier violated one of the corresponding

App. 12

regulations, then such a violation is negligence per se

under the Federal Employers’ Liability Act. Coffey v. Ne.

Illinois Reg’l Commuter R. Corp. (METRA), 479 F.3d

472, 474 (7th Cir. 2007). This means (1) a plaintiff does

not need to prove that the violation proximately caused

his injury; and (2) that the defendant may not argue that

the plaintiff engaged in any contributory negligence.

O’Donnell v. Elgin, Joliet & Eastern Ry. Co., 338 U.S.

384, 390 (1949); 45 U.S.C. §§ 53–54.

So FELA and the Locomotive Inspection Act work in

harmony—a plaintiff can bring a broad negligence claim

against a carrier under FELA, but at the same time bring

a negligence per se claim against the carrier under the

Locomotive Inspection Act if the carrier violated one of

its corresponding regulations. And that is what LeDure

does here. Count I alleges that Union Pacific violated the

Federal Employers’ Liability Act under theories of both

simple negligence as well as negligence per se pursuant

to certain regulations under the Locomotive Inspection

Act, while Count II directly alleges violations of the same

Locomotive Inspection Act regulations mentioned in

Count I. (See generally ECF No. 22.)

A. The Locomotive Inspection Act

The first issue here is whether LeDure’s Locomotive

Inspection Act theory—which is predicated on violations

of numerous U.S. Department of Transportation

regulations—may proceed at all. The statute says:

A railroad carrier may use or allow to be used

a locomotive or tender on its railroad line only

when the locomotive or tender and its parts and

appurtenances—

(1) are in proper condition and safe to operate

without unnecessary danger of personal injury;

App. 13

(2) have been inspected as required under

this chapter and regulations prescribed by

the Secretary of Transportation under this

chapter; and

(3) can withstand every test prescribed by the

Secretary under this chapter.

49 U.S.C. § 20701 (emphasis added).

Accordingly, the locomotive in question must be

“in use” at the time of the accident for the Locomotive

Inspection Act to apply. Lyle v. Atchison T. & S.F. Ry.

Co., 177 F.2d 221, 222 (7th Cir. 1949), cert. denied 339

U.S. 913 (1950). “In other words, when a locomotive

or car is in ‘use on the line,’ the mandatory duty of the

carrier attaches; and, when the car or engine is not so

‘in use,’ then the duty under the express provision of the

statute does not exist.” Id.; see also Wright v. Arkansas

& Missouri R.R. Co., 574 F.3d 612, 620 (8th Cir. 2009);

Trinidad v. Southern Pac. Transp. Co., 949 F.2d 187,

189 (5th Cir. 1991); Deans v. CSX Transp., Inc., 152 F.3d

326, 329 (4th Cir. 1998); Brady v. Terminal R. Ass’n of

St. Louis, 303 U.S. 10, 13–14, 58 S.Ct. 426, 82 L.Ed. 614

(1938). This question is a matter of law for the Court to

decide. Steer v. Burlington Northern, Inc., 720 F.2d 975,

976 (8th Cir. 1983).

The problem, however, is that there is no clear-cut test

to determine when a locomotive is “in use.” The seminal

Seventh Circuit case on the matter—dating back to 1949—

asked whether “the use of the engine in transportation

had for the time being been abandoned…[and] its use in

commerce had come to an end.” Lyle, 177 F.2d at 222. The

locomotive in Lyle was in a roundhouse for inspection

and repairs, so the Seventh Circuit instructed: “To service

an engine while it is out of use, to put it in readiness for

use, is the antithesis of using it.” Lyle, 177 F.2d at 223.

But since Lyle did not create any sort of concrete test or

App. 14

set of guidelines, federal district courts—and even state

courts, which FELA grants concurrent jurisdiction to in

certain circumstances—applying the case are all over

the map. Both parties in this case accordingly point to

an abundance of district court opinions in their favor,

but given their sheer number and contrasting outcomes,

none of them are very instructive.

Other United States Courts of Appeals are also all

over the place. The Tenth Circuit has said that “in use”

means “used in moving interstate or foreign traffic.”

Estes v. Southern Pacific, 598 F.2d 1195, 1198 (10th Cir.

1979). The Fourth Circuit has said that this is a totality

of the circumstances test, but the most important factors

are (1) where the train was located; (2) if the train was

stationary, what time the train was scheduled to depart;

and (3) what the injured party was doing at the time of

the accident. Deans v. CSX Transportation, Inc., 152

F.3d 326, 329–30 (4th Cir. 1998). The First Circuit gets a

bit more specific: if the locomotive is running on the yard

track and ready to move into service, and the worker

was injured while performing pre-departure inspection

duties, then the locomotive is “in use.” McGrath v.

Consolidated Rail Corp., 136 F.3d 838, 842 (1st Cir. 1998).

And the Fifth Circuit has the strictest test: the locomotive

is not “in use” until it is fully assembled and the crew has

completed those predeparture inspections. Trinidad v.

Southern Pacific Transportation Co., 949 F.2d 187, 189

(5th Cir. 1991).

Here, after reviewing all of the circumstances in this

case, Union Pacific’s locomotive was not “in use” at the

time of LeDure’s accident. To harken back to the Seventh

Circuit’s first instruction: “To service an engine while it is

out of use, to put it in readiness for use, is the antithesis of

using it.” Lyle, 177 F.2d at 223. And here, although LeDure

was not repairing the locomotive in a roundhouse like in

Lyle, LeDure was nevertheless putting the locomotive

App. 15

“in readiness for use” when he slipped: the train was (1)

stationary; (2) on a backtrack in the depot yard; (3) had

not yet been inspected or tagged; and (4) perhaps most

importantly, the engineers had not yet assembled the

cars on the train for its next use in interstate commerce.

In fact, LeDure specifically said at his deposition that

“the train was not set up and ready to go.” (LeDure Dep.,

ECF No. 49-1, 83:9–10.) LeDure later explained just how

much work needed to be done before the train would be

ready for its next use in interstate commerce:

Q. Just tell me what switching you did that morning.

A. I can’t recall if we set out or we picked up,

but we had to make a couple of moves on a

couple of different tracks and then put our

train back together.

Q. Were you able to do that safely?

A. I thought I did, yes.

Q. So how many different moves did you have to

make to do that switching?

A. I would be estimating because I don’t recall

exactly.

Q. What is your estimate?

A. More than three.

(Id. at 193:18–194:7.) There was still a considerable

amount of work to be done before this locomotive was

ready for its next trip in interstate commerce, and that is

the “antithesis of using it.” Lyle, 177 F.2d at 223.

And these facts would lead to the same conclusion

in other circuits. Trinidad, 949 F.2d at 189 (locomotive

not “in use” when the train was not yet fully assembled);

McGrath, 136 F.3d at 842 (locomotive not “in use” if

the train is not ready to move into service); Estes v.

App. 16

Southern Pacific, 598 F.2d at 1198 (locomotive not “in

use” if it is not moving interstate traffic). Even Deans v.

CSX Transportation, Inc., 152 F.3d 326 (4th Cir. 1998)—

which LeDure relied on heavily at oral argument—does

not compel a different conclusion: there, a train was “in

use” even when sitting on a back track, but only because

it was ready for “imminent departure.” 152 F.3d at 330.

Here, LeDure’s own testimony demonstrates that the

train was not close to ready for “imminent departure”

when he slipped—there was still a considerable amount

of prep work to be done.

Since the locomotive was not “in use” at the time

of the accident, there is a lot of collateral damage to

the rest of the motions and the complaint in this case.

49 U.S.C. § 20701—the opening bit of the Locomotive

Inspection Act—instructs that a locomotive must be “in

use” for it to apply, and then delegates authority to the

Secretary of Transportation to promulgate regulations

to implement the statute. But since the locomotive here

was not “in use,” none of those regulations apply to this

case. This means that the Court must dismiss the entirety

of Count II of the first-amended complaint, as well as

¶¶ 10(e)–(i) of Count I—which are all predicated on

Department of Transportation regulations promulgated

pursuant to the Locomotive Inspection Act. Moreover,

any further arguments in the motions pertaining to the

regulations—such as whether 49 C.F.R. § 229.119(c)

applies to exterior walkways; or whether LeDure is

entitled to partial summary judgment based on Union

Pacific’s alleged violation of any of the regulations (ECF

No. 50)—are moot. This also extends to Union Pacific’s

motion regarding the tread patterns on the locomotive

walkway (ECF No. 46): the company had argued that the

regulations preclude LeDure from arguing that Union

Pacific should have installed a different tread design

on the walkways, because such a theory is actually a

App. 17

design defect claim. LeDure had responded that he is not

brining a design defect claim, but is simply arguing that

49 C.F.R. § 229.119(c) requires railroads to properly treat

locomotive floors—and Union Pacific failed to do so. But

since the regulations do not apply to this case, all of that

it moot as well.

B. The Federal Employers’ Liability Act

Even though the locomotive was not in use, LeDure

still may have recourse under the Federal Employers’

Liability Act—and all he has to do is show that Union

Pacific is liable in standard negligence in order to prevail.

Crompton, 745 F.3d at 296. Union Pacific argues that

they are entitled to summary judgment on this theory

as well because LeDure’s injury was not reasonably

foreseeable—basically, that LeDure has not demonstrated

“circumstances which a reasonable person would

foresee as creating a potential for harm.” Holbrook v.

Norfolk Southern Railway Co., 414 F.3d 739, 742 (7th

Cir. 2005). LeDure can do this in two ways: he can

show that (1) Union Pacific had actual notice of the

condition—meaning that they knew about the risk and

failed to act—or (2) Union Pacific had constructive

notice of the condition—meaning that they could have

taken reasonable steps ahead of time to learn about the

condition, but failed to do so. Id.; Zuppardi v. Wal-Mart

Stores, Inc., 770 F.3d 644, 651 (7th Cir. 2014).

LeDure can do neither, in a very similar vein to

Holbrook. There, an employee for Norfolk Southern

was injured when he slipped while climbing a ladder.

And once he hit the ground, he noticed “a sticky, oily

substance on the rung, which he wiped off with a paper

towel.” 414 F.3d at 741. Holbrook then sued Norfolk

Southern under FELA, and although he did “not know

whether the substance was on the ladder before he came

to it or [if he] tracked [the oil] onto it from somewhere

App. 18

else,” Holbrook claimed that the substance must have

come from the train yard where there sometimes were

pools of oil on the ground. Id. So Holbrook first argued

that Norfolk Southern had actual notice of the condition

because of those occasional pools of oil in the yard that

everyone knew about, but the Seventh Circuit rejected

that—stating “Holbrook simply offers no evidence that

he was in the vicinity of an accumulated oil pool on the

day of the accident, or that any such accumulation even

then existed [on that particular day],” so “it would not be

reasonable to infer that putative pools of accumulated oil

in the Elkhart Yard played a part in Holbrook’s injury.”

Id. at 744.

And here, there is also no evidence that Union Pacific

had actual notice of the “greasy or oil-type substance”

that LeDure slipped on. In fact, LeDure himself could not

identify the source of the substance or even what it was:

he said “I don’t know what the substance was exactly.

I have no idea to tell you if it was a certain substance

or another substance.” (LeDure Dep., ECF No. 49-1,

85:11–13.) And there is no evidence that Union Pacific

saw this substance before LeDure did— even LeDure did

not see it until he brought himself to “kind of lean over

and get the light down closer to it to notice that there

was a little something there.” (Id. at 110:16–24.)

So LeDure instead relies on a theory of constructive

notice—namely that Union Pacific should have inspected

the locomotive before they sent LeDure out to work

on it. But the employee in Holbrook brought a similar

argument, yet the Seventh Circuit very quickly rejected

that one as well. In Holbrook, Norfolk Southern failed to

catch the alleged slick spot during their last inspection,

but the Seventh Circuit reasoned:

[A]ccording to the plaintiff, if the grease was on

the ladder before he came to it, the inspectors

App. 19

should have discovered it. However, there is

absolutely no evidence that the grease was on

the ladder before Holbrook stepped on it. And

even assuming that the grease was on the ladder

before Holbrook stepped on it, there are a myriad

of possible ways the substance could have gotten

onto the ladder between the railcar’s inspection

and its contact with Holbrook (e.g., splatter

from a passing train on adjacent tracks, residue

from mounting by another employee). Holbrook

himself conceded that, if the dab of grease was

on the ladder before he stepped on it, it could

have attached sometime after the car’s inspection.

Because plaintiff’s constructive notice argument

“rests on mere speculation and conjecture,” it too

must fail. See Deans v. CSX Transp., Inc., 152

F.3d 326, 330 (4th Cir. 1998) (affirming grant of

summary judgment against FELA plaintiff where

plaintiff “introduced no evidence to show that an

earlier inspection would have revealed or cured

the [defective condition], or that the railroad had

notice of the defect prior to the accident”).

414 F.3d at 744–45.

The facts here are nearly identical: LeDure has

introduced no evidence that the small slick spot was on

the walkway before he stepped on it—which is especially

concerning considering he testified that he wears the very

same work boots around his farm. (LeDure Dep., ECF

No. 49-1, 173:22–174:3.) And even assuming that the spot

was there before he stepped on it, “there are a myriad of

possible ways the substances could have gotten onto”

the walkway, just as outlined in Holbrook. 414 F.3d. at

475. And what is more, LeDure also testified that he “did

not see anything that looked like it was coming out of the

engine compartments”—making his theory even more

hazy. (LeDure Dep., ECF No. 49-1, 87:16–20.) The same

App. 20

was confirmed by Union Pacific’s corporate designee,

who testified that there were no components in the

architecture of the locomotive near that area that could

have leaked and caused the slick spot. (Thomas Kennedy

Dep., ECF No. 49-5, 42:1–12.)

And although this case is factually distinguishable

from Holbrook on the grounds that the inspection here

had not occurred yet, it does not make any difference—

LeDure’s constructive notice argument still would rest on

“on mere speculation and conjecture” that an inspection

would have turned something up—which is doubtful

considering how difficult it was for LeDure to find

this slick spot in the first place. Id. Just as the Fourth

Circuit said in Deans—a case that LeDure relied heavily

on at oral arguments—summary judgment is proper

when a plaintiff “introduced no evidence to show that

an earlier inspection would have revealed or cured the

[defective condition].” Deans, 152 F.3d at 330. And that is

exactly what happened here—LeDure has introduced no

evidence to show that an earlier inspection would have

revealed this small, mysterious “slick spot.” So LeDure’s

standard negligence theory under FELA fails as well.

CONCLUSION

For the foregoing reasons, the Court:

•

GRANTS Union Pacific’s motion for summary

judgment (ECF No. 48);

•

FINDS AS MOOT Union Pacific’s motion for

summary judgment on any claims regarding

the tread pattern on the locomotive walkway

(ECF No. 46);

•

FINDS AS MOOT LeDure’s motion for partial

summary judgment (ECF No. 50);

•

FINDS AS MOOT any other pending motions;

App. 21

•

DISMISSES this case WITH PREJUDICE;

and

•

DIRECTS the Clerk of Court to enter judgment

accordingly.

IT IS SO ORDERED.

DATED: JANUARY 31, 2019

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

App. 22

App. 23

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Case No. 3:17-cv-00737-JPG-GCS

BRADLEY LEDURE,

Plaintiff,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, DISTRICT JUDGE

Federal Rule of Civil Procedure 59(e) “is not a

procedural folly to be filed by a losing party who simply

disagrees with the decision; otherwise, the Court would

be inundated with motions from dissatisfied litigants.”

Erlandson v. ConocoPhillips Co., No. 09-99-DRH, 2010

WL 4292827, at *1 (S.D. Ill. Oct. 21, 2010) (citing Yorke

v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 B.R.

963, 977 (N.D.Ill. 1990)). Nor is it a vehicle for a losing

party to misrepresent a district court’s opinion, and

then seek a review based on those misrepresentations.

But plaintiff Bradley LeDure uses Rule 59(e) here for

those purposes anyways. This Court previously granted

summary judgment in favor of defendant Union Pacific

Railroad Company, and LeDure has since filed a motion

to alter or amendment the judgment under the rule. (ECF

No. 88.)

App. 24

Instead, Rule 59(e) allows the Court to amend a

judgment if the movant “can demonstrate a manifest error

of law or present newly discovered evidence.” Obriecht

v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). A “manifest

error” is a “wholesale disregard, misapplication, or failure

to recognize controlling precedent.” Burritt v. Ditlefsen,

807 F.3d 239, 253 (7th Cir. 2015) (internal quotations and

citations omitted). This form of relief is only available

if the movant clearly establishes the manifest error.

Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.

2006) (citing Romo v. Gulf Stream Coach, Inc., 250 F.3d

1119, 1122 n. 3 (7th Cir. 2001)).

LeDure meets none of those standards, and instead

misunderstands or misrepresents both this Court’s prior

order and the binding caselaw that it relied on. It is

unnecessary to address every single one of LeDure’s

arguments—many of them are rehashes of LeDure’s

summary judgment arguments, and the Court reaffirms

its prior order for all of the reasons therein—but in order

to ensure that the Court’s order is not warped in any

potential appellate briefs, it is necessary to highlight a

few of LeDure’s arguments: one regarding unpublished

district court decisions; one regarding citations; one

regarding the nature of the Locomotive Inspection Act,

and one regarding the facts of this case.

First, LeDure complains that the Court did not

consider a number of unpublished district court

cases within the Seventh Circuit, such as Underhill v.

CSX Transportation, Inc., No. 1:05-CV-196-TS, 2006

WL 1128619 (N.D. Ind. April 24, 2006) and Zanden

v. Norfolk & Western Rwy. Co., No. 93 C 4572, 1996

WL 699604 (N.D. Ill. Nov. 26, 1996). This is a non-starter.

As the Court explained in its prior order, the specific

question in this case—whether the locomotive was “in

use” at the time of the accident—has led many United

States Courts of Appeals to inconsistent outcomes with

App. 25

very little guidance. (ECF No. 85, p. 6–7.) And because of

that, district courts around the country—many of them

in nonprecedential unpublished decisions—are also all

over the place in terms of their analysis. For that reason,

the Court explained that it would focus its attention

on the published appellate cases instead of these

nonprecedential district court opinions, explaining: “[b]

oth parties in this case accordingly point to an abundance

of district court opinions in their favor, but given their

sheer number and contrasting outcomes, none of them

are very instructive.” (ECF No. 85, p. 7.) The Court

did not make any manifest errors by rejecting these

nonprecedential district court opinions.

Second, LeDure made the following argument:

The Court also manifestly erred in concluding that

the locomotive would not be in use if precedent

from other circuits was applied (Doc. 85 at 9). Most

egregiously, in citing McGrath v. Consolidated

Rail Corp., 136 F.3d 838, 842 (1st Cir. 1998), the

Order mischaracterized the holding as finding a

locomotive not in use “if the train is not ready

to move into service.” To the contrary, McGrath

found the locomotive was in use because it “was

not being stored on the yard track or awaiting

removal to the engine house for repairs. Rather

[it] was running on the yard track and ready to

move into service.” Id.

(ECF No. 88, p. 8.) That is incorrect. Even a cursory

review of the Court’s prior order shows that it accurately

explained McGrath as holding “if the locomotive is

running on the yard track and ready to move into

service, and the worker was injured while performing

pre-departure inspection duties, then the locomotive is

‘in use.’” (ECF No. 85., p. 7.) And then two pages later—

the page that LeDure complains about—the Court used

App. 26

parentheticals to explain how each of these circuit court

cases, such as McGrath, would come out if faced with

the facts of this case. (Id. at p. 9.) LeDure’s argument that

this was a “most egregious” error by the Court is either a

misrepresentation or a misunderstanding.

Third, one of the issues in this case was the application

of regulations promulgated under the Locomotive

Inspection Act, 49 U.S.C. § 20701. The opening of that

statute instructs that a locomotive must be in use for it to

apply, and then it delegates authority to the Secretary of

Transportation to promulgate regulations to implement

the statute. The Court accordingly had concerns as to

whether LeDure’s cited regulations—promulgated by the

Secretary of Transportation pursuant to the Locomotive

Inspection Act—would even apply to this case if the

Court found that the locomotive was not in use at the

time of the accident. The Court asked both parties about

this at oral argument, and ultimately agreed with the

following response by the defendant:

[DEFENDANT]: And I would just say we disagree

[with the plaintiff] that these regulations would

apply if you find the locomotive was not in use.

THE COURT: So, you are saying if I find the

locomotive not in use, then the LIA claims go

away; is that what you are saying?

[DEFENDANT]: Yes, because those regulations

are pursuant to the FRA’s authority to promulgate

regulations pursuant to the LIA. And, in fact, two

of these regulations, the first two, I think, just

simply regurgitate the Locomotive Inspection Act,

the same language.

(ECF No. 87, 62:9–19.) For that reason, and because

the Court found that the locomotive was not “in use”

here, the Court found it unnecessary to address any

App. 27

of the arguments pertaining to the specifics of those

regulations—including 49 C.F.R. § 229.119(c), which

LeDure centers most of his complaints on, and 49 C.F.R.

§ 229.21, which LeDure accuses the Court of dismissing

“without discussion or analysis.” (ECF No. 88, p. 13.)

Finally, the last issue is one of fact. The Court

previously dismissed LeDure’s negligence claim because

there was zero evidence in this case that anyone had

any notice of the “small slick spot” on the walkway—a

substance that LeDure could not even identify—before

he slipped on it. That lack of evidence was particularly

concerning here because (1) LeDure admitted that he did

not see anything coming out of the engine compartments;

(2) a Union Pacific representative testified that there were

no components in the architecture of the locomotive near

that area that could have leaked and caused the “slick

spot”; and (3) LeDure wore these same boots around his

farm, adding yet another wrinkle to the myriad of ways

that this slick spot could have allegedy gotten onto the

walkway. (See ECF No. 85, pp. 10–13.) The Court then

explained that the plaintiff’s case here was even weaker

than the situation in Holbrook v. Norfolk Southern

Railway Co., 414 F.3d 739, 742 (7th Cir. 2005), in which

the Seventh Circuit dismissed Holbrook’s claim because

he had not shown “circumstances which a reasonable

person would foresee as creating a potential for harm”—

specifically because “there is absolutely no evidence that

the grease was on the ladder before Holbrook stepped on

it. And even assuming that the grease was on the ladder

before Holbrook stepped on it, there are a myriad of

possible ways the substance could have gotten onto the

ladder….” Id. at 744–45. Holbrook governs and forecloses

LeDure’s argument.

LeDure objects, but only one of those objections

deserves particular attention: “the Court disregarded the

fact that oil had previously been discovered on the same

App. 28

area of this locomotive before the incident, supporting

a reasonable inference that this locomotive either had

a source leaking oil or that Defendant had insufficient

clean up practices.” (ECF No. 88, p. 16.) But LeDure’s

statement is not an honest depiction of that evidence: he

fails to mention that this prior discovery occurred three

years before the incident in this case. (ECF No. 55-5.) He

did the same in his response to the motion for summary

judgment. (ECF No. 55, p. 4.) It is highly questionable

whether this evidence from three years prior—with

no further explanation from LeDure—is even relevant

to the accident in this case. Instead, LeDure merely

speculates that they are related, and speculates that a

prior inspection would have revealed the substance and

stopped the fall. But as Holbrook explained, and as the

Supreme Court has mandated, “[s]peculation cannot

supply the place of proof.” Moore v. Chesapeake & O. Ry.

Co., 340 U.S. 573, 577 (1951).

CONCLUSION

For the foregoing reasons, the Court DENIES

plaintiff Bradley LeDure’s motion to alter or amend the

judgment. (ECF No. 88.)

IT IS SO ORDERED.

DATED: May 20, 2019

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

App. 29

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

July 16, 2020

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY CONEY BARRETT, Circuit Judge

No. 19-2164

BRADLEY LEDURE,

Plaintiff-Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:17-cv-00737-JPG-GCS

J. Phil Gilbert, Judge.

ORDER

On consideration of plaintiff-appellant’s petition for

rehearing and petition for rehearing en banc filed on July

1, 2020, in connection with the above-referenced case,

no judge in active service has requested a vote on the

petition for rehearing en banc,* and all of the judges on

*

Circuit Judge Amy J. St. Eve did not participate in the

consideration of this petition for rehearing.

App. 30

the original panel have voted to DENY the petition for

rehearing. It is, therefore, ORDERED that the petition

for rehearing and the petition for rehearing en banc are

DENIED.

App. 31

STATUTES AND REGULATIONS INVOLVED

Title 45 United States Code, Section 51

Liability of common carriers by railroad, in

interstate or foreign commerce, for injuries to

employees from negligence; employee defined

Every common carrier by railroad while engaging

in commerce between any of the several States

or Territories, or between any of the States and

Territories, or between the District of Columbia

and any of the States or Territories, or between

the District of Columbia or any of the States or

Territories and any foreign nation or nations,

shall be liable in damages to any person suffering

injury while he is employed by such carrier in

such commerce, or, in case of the death of such

employee, to his or her personal representative,

for the benefit of the surviving widow or husband

and children of such employee; and, if none,

then of such employee’s parents; and, if none,

then of the next of kin dependent upon such

employee, for such injury or death resulting in

whole or in part from the negligence of any of

the officers, agents, or employees of such carrier,

or by reason of any defect or insufficiency, due

to its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats, wharves,

or other equipment.

Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance

of interstate or foreign commerce; or shall, in any

way directly or closely and substantially, affect

such commerce as above set forth shall, for the

purposes of this chapter, be considered as being

employed by such carrier in such commerce and

App. 32

shall be considered as entitled to the benefits of

this chapter.

Title 45 United States Code, Section 53

Contributory negligence; diminution of damages

In all actions on and after April 22, 1908 brought

against any such common carrier by railroad

under or by virtue of any of the provisions of this

chapter to recover damages for personal injuries

to an employee, or where such injuries have

resulted in his death, the fact that the employee

may have been guilty of contributory negligence

shall not bar a recovery, but the damages shall be

diminished by the jury in proportion to the amount

of negligence attributable to such employee:

Provided, That no such employee who may be

injured or killed shall be held to have been guilty

of contributory negligence in any case where the

violation by such common carrier of any statute

enacted for the safety of employees contributed

to the injury or death of such employee.

Title 45 United States Code, Section 54a

Certain Federal and State regulations deemed

statutory authority

A regulation, standard, or requirement in force,

or prescribed by the Secretary of Transportation

under chapter 201 of title 49 or by a State

agency that is participating in investigative and

surveillance activities under section 20105 of title

49, is deemed to be a statute under sections 53

and 54 of this title.

App. 33

Title 49 United States Code, Section 20301

Definition and Nonapplication

(a) DEFINITION.— In this chapter, “vehicle” means

a car, locomotive, tender, or similar vehicle.

(b) NONAPPLICATION.—This chapter does not apply

to the following:

(1) a train of 4-wheel coal cars.

(2) a train of 8-wheel standard logging cars if

the height of each car from the top of the rail

to the center of the coupling is not more than

25 inches.

(3) a locomotive used in hauling a train

referred to in clause (2) of this subsection

when the locomotive and cars of the train are

used only to transport logs.

(4) a car, locomotive, or train used on a street

railway.

Title 49 United States Code, Section 20302

General Requirements

(a) GENERAL.—Except as provided in subsection

(c) of this section and section 20303 of this title,

a railroad carrier may use or allow to be used on

any of its railroad lines—

(1) a vehicle only if it is equipped with—

(A) couplers coupling automatically by

impact, and capable of being uncoupled,

without the necessity of individuals going

between the ends of the vehicles;

(B) secure sill steps and efficient hand

brakes; and

App. 34

(C) secure ladders and running boards

when required by the Secretary of

Transportation, and, if ladders are required,

secure handholds or grab irons on its roof

at the top of each ladder;

(2) except as otherwise ordered by the

Secretary, a vehicle only if it is equipped with

secure grab irons or handholds on its ends

and sides for greater security to individuals in

coupling and uncoupling vehicles;

(3) a vehicle only if it complies with the

standard height of drawbars required by

regulations prescribed by the Secretary;

(4) a locomotive only if it is equipped with a

power-driving wheel brake and appliances for

operating the train-brake system; and

(5) a train only if—

(A) enough of the vehicles in the train are

equipped with power or train brakes so that

the engineer on the locomotive hauling the

train can control the train’s speed without

the necessity of brake operators using the

common hand brakes for that purpose; and

(B) at least 50 percent of the vehicles in

the train are equipped with power or train

brakes and the engineer is using the power

or train brakes on those vehicles and on all

other vehicles equipped with them that are

associated with those vehicles in the train.

(b) REFUSAL TO RECEIVE VEHICLES NOT PROPERLY

EQUIPPED.—

A railroad carrier complying with subsection

(a)(5)(A) of this section may refuse to receive from

App. 35

a railroad line of a connecting railroad carrier or

a shipper a vehicle that is not equipped with

power or train brakes that will work and readily

interchange with the power or train brakes in use on

the vehicles of the complying railroad carrier.

(c) COMBINED VEHICLES LOADING AND HAULING LONG

COMMODITIES.—

Notwithstanding subsection (a)(1)(B) of

this section, when vehicles are combined to

load and haul long commodities, only one of

the vehicles must have hand brakes during the

loading and hauling.

(d) AUTHORITY TO CHANGE REQUIREMENTS.—The

Secretary may—

(1) change the number, dimensions, locations,

and manner of application prescribed by the

Secretary for safety appliances required by

subsection (a)(1)(B) and (C) and (2) of this

section only for good cause and after providing

an opportunity for a full hearing;

(2) amend regulations for installing,

inspecting, maintaining, and repairing power

and train brakes only for the purpose of

achieving safety; and

(3) increase, after an opportunity for a full

hearing, the minimum percentage of vehicles

in a train that are required by subsection

(a)(5)(B) of this section to be equipped and

used with power or train brakes.

(e) SERVICES OF ASSOCIATION OF AMERICAN RAILROADS.—

In carrying out subsection (d)(2) and (3) of this

section, the Secretary may use the services of

the Association of American Railroads.

App. 36

Title 49 United States Code, Section 20701

Requirements for use

A railroad carrier may use or allow to be used

a locomotive or tender on its railroad line only

when the locomotive or tender and its parts and

appurtenances—

(1) are in proper condition and safe to operate

without unnecessary danger of personal injury;

(2) have been inspected as required under

this chapter and regulations prescribed by

the Secretary of Transportation under this

chapter; and

(3) can withstand every test prescribed by the

Secretary under this chapter.

Title 49 Code of Federal Regulations, Section 229.1

Scope

This part prescribes minimum Federal safety

standards for all locomotives except those

propelled by steam power.

Title 49 Code of Federal Regulations, Section

229.21

Daily inspection

(a) Except for MU locomotives, each locomotive

in use shall be inspected at least once during each

calendar day. A written report of the inspection

shall be made. This report shall contain the

name of the carrier; the initials and number of

the locomotive; the place, date and time of the

inspection; a description of the non-complying

conditions disclosed by the inspection; and the

signature of the employee making the inspection.

Except as provided in §§229.9, 229.137, and

App. 37

229.139, any conditions that constitute noncompliance with any requirement of this part

shall be repaired before the locomotive is used.

Except with respect to conditions that do not

comply with §229.137 or §229.139, a notation shall

be made on the report indicating the nature of

the repairs that have been made. Repairs made

for conditions that do not comply with §229.137

or §229.139 may be noted on the report, or in

electronic form. The person making the repairs

shall sign the report. The report shall be filed and

retained for at least 92 days in the office of the

carrier at the terminal at which the locomotive is

cared for. A record shall be maintained on each

locomotive showing the place, date and time of

the previous inspection.

(b) Each MU locomotive in use shall be inspected

at least once during each calendar day and a

written report of the inspection shall be made.

This report may be part of a single master report

covering an entire group of MU’s. If any noncomplying conditions are found, a separate,

individual report shall be made containing the

name of the carrier; the initials and number of

the locomotive; the place, date, and time of the

inspection; the non-complying conditions found;

and the signature of the inspector. Except as

provided in §§229.9, 229.137, and 229.139, any

conditions that constitute non-compliance with

any requirement of this part shall be repaired

before the locomotive is used. Except with respect

to conditions that do not comply with §229.137 or

§229.139, a notation shall be made on the report

indicating the nature of the repairs that have been

made. Repairs made for conditions that do not

comply with § 229.137 or § 229.139 may be noted

App. 38

on the report, or in electronic form. A notation

shall be made on the report indicating the nature

of the repairs that have been made. The person

making the repairs shall sign the report. The

report shall be filed in the office of the carrier at

the place where the inspection is made or at one

central location and retained for at least 92 days.

(c) Each carrier shall designate qualified persons

to make the inspections required by this section.

Title 49 Code of Federal Regulations, Section

229.119

Cabs, floors, and passageways

(a) Cab seats shall be securely mounted and

braced. Cab doors shall be equipped with a secure

and operable latching device.

(b) Cab windows of the lead locomotive shall

provide an undistorted view of the right-of-way

for the crew from their normal position in the cab.

(See also, Safety Glazing Standards, 49 CFR part

223, 44 FR 77348, Dec. 31, 1979.)

(c) Floors of cabs, passageways, and

compartments shall be kept free from oil, water,

waste or any obstruction that creates a slipping,

tripping or fire hazard. Floors shall be properly

treated to provide secure footing.

(d) Any occupied locomotive cab shall be

provided with proper ventilation and with a

heating arrangement that maintains a temperature

of at least 60 degrees Fahrenheit 6 inches above

the center of each seat in the cab compartment.

(e) Similar locomotives with open-end platforms

coupled in multiple control and used in road

service shall have a means of safe passage

App. 39

between them; no passageway is required through

the nose of car body locomotives. There shall be a

continuous barrier across the full width of the end

of a locomotive or a continuous barrier between

locomotives.

(f) Containers shall be provided for carrying

fusees and torpedoes. A single container may be

used if it has a partition to separate fusees from

torpedoes. Torpedoes shall be kept in a closed

metal container.

(g) Each locomotive or remanufactured

locomotive placed in service for the first time

on or after June 8, 2012, shall be equipped with

an air conditioning unit in the locomotive cab

compartment.

(h) Each air conditioning unit in the locomotive

cab on a locomotive identified in paragraph (g)

of this section shall be inspected and maintained

to ensure that it operates properly and meets or

exceeds the manufacturer’s minimum operating

specifications during the periodic inspection

required for the locomotive pursuant to § 229.23

of this part.

(i) Each locomotive or remanufactured

locomotive ordered on or after June 8, 2012, or

placed in service for the first time on or after

December 10, 2012, shall be equipped with a

securement device on each exterior locomotive

cab door that is capable of securing the door from

inside of the cab.

App. 40