JUDGE RULES TO INCLUDE RAILROAD MEMO IN SUITS

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, January 12, 1993                   TAG: 9301120062
SECTION: VIRGINIA                    PAGE: B-3   EDITION: METRO 
SOURCE: LON WAGNER STAFF WRITER
DATELINE: MARTINSVILLE                                LENGTH: Medium
JUDGE RULES TO INCLUDE RAILROAD MEMO IN SUITS
At least for now, a controversial Norfolk Southern Corp. internal memo will remain in play in two multimillion-dollar lawsuits filed against the railroad in Henry County.
Henry County Circuit Court Judge David Williams has issued an opinion that it would be premature to eliminate the memo from the cases.
Two lawsuits seeking a total of $24 million were filed against Norfolk Southern after two Henry County teen-agers were killed on a railroad trestle in August.
Covington attorney Bill Wilson attached the internal Norfolk Southern memo to the lawsuit he filed on behalf of one of the families.
The September 1989 memo, written by Wiley F. Mitchell Jr., the railroad's chief attorney, suggests the railroad knew warning devices would likely reduce accidents, but failed to install them due to a fear of lawsuits.
An underlined part of the memo read:
"Although the sounding of warnings on the engine horn and the installation of the signs and other protective devices should reduce the risk of accidents, the failure to maintain the signs and protective devices, or the failure to sound a warning on the engine horn, will, in the event of an accident, give a prospective plaintiff a very sound legal theory on which to assert liability against us."
Although he rejected the railroad's request to remove the memo from the case immediately, Williams suggested "that may well be the ultimate ruling of this court, considering the state of the law . . . regarding trespassers on railroad property."
Williams also took the opportunity to chastise Wilson for including the memo this early in the case.
"The sole purpose would appear to be for the plaintiff to garner as much public attention to this case as possible, prior to trial," Williams wrote.
Williams then forbade Wilson from using the memo again without the court's permission.
Wilson was not available for comment.
Railroad attorney Les Hagie said an order on the opinion would probably be entered by the attorneys by the end of the week.
Hagie has also asked that the two lawsuits - filed on behalf of the families of Charles Barker, 13, and Earl Adams, 14 - be consolidated.
Hagie said the consolidation would prevent the train's crew from having to relive the teens' Aug. 16 death during two sets of depositions.
"It's the same set of facts, the same law against trespassing applies, the same equipment is involved, the same crew is involved," he said.

by Bhavesh Jinadra by CNB