On 4th anniversary of deadly Valhalla Metro-North crash, third rail is focus of litigation

• Passengers in the lead car of Train 659 climbed over bodies so they could escape through emergency windows
• Lawyers for the estates of dead passengers say the railroad should have designed the third rail to break apart on impact
• 'I was thinking it was sort of like a can opener...cutting us open,' a passenger told federal safety investigators
• The third rail broke apart during a 1984 accident that killed a cable technician from Stony Point

The following account includes excerpts from National Transportation Safety Board interviews with passengers in the lead car of Metro-North Train 659, which collided with a Mercedes SUV at a Valhalla grade crossing on Feb. 3, 2015, killing five passengers and the driver of the SUV. Passenger names were redacted from the NTSB reports.

Forty-five minutes into the trip north, the 20 passengers in the lead car of Metro-North Train 659 were filling the time doing what commuters do – checking email, listening to music, knitting, reading the newspaper, dozing off.

It was around 6:26 p.m. on Feb. 3, 2015. A winter storm left a deep bank of snow beside the rails of the Harlem Line in the Westchester County hamlet of Valhalla, New York.

Few on board seemed to notice when Steven Smalls, in just his ninth month as an engineer, blasted his horn and hit the brakes, dropping his speed down to 51 mph, when he spotted a 2011 Mercedes SUV stuck on the tracks less than a football field’s distance away at the Commerce Street crossing.

Seconds later, the eight-car train slammed into the SUV driven by Ellen Brody, a 49-year-old mother of three from Edgemont who, for reasons that still aren’t entirely clear, moved forward on the tracks after getting out to inspect a crossing gate that had come down on the rear of the car.

Some described it as a bomb going off, others a bang or a soft thud. Everyone on board the train was still alive.

For the moment.

But as the train moved Brody’s SUV some 250 feet to the north, the electrified third rail on the west side of the track detached, piercing the fuel tank in Brody’s SUV before cutting into the lead rail car.

“And it went on for a really long, long time, and it just got worse and worse,” one passenger told investigators from the National Transportation Safety Board on Feb. 11, 2015. “As the train went on you just heard more of the metal against metal. And all the seats seemed to be like collapsing. … It was just a horrible noise and it just kept getting closer and closer to where I was sitting.”

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The train and SUV traveled another 415 feet together before coming to a stop.

The passenger was tossed against a window. He soon noticed the third rail had gone right through the seat where he’d been sitting moments before.

“I was thinking it was sort of like a can opener, like, cutting us open,” another passenger told the NTSB. “But instead of just popping up and cutting and moving on, it kind of kept growing and filling back up and raising up, if you will.”

Four years after the deadliest accident in Metro-North’s history, the design of the third rail has become a central focus of lawsuits filed by the estates of those who died aboard Train 659, an investigation by The Journal News/lohud.com has found.

The debate comes down to this.

Why did the third rail function like a killing spear, taking the lives of everyone in its direct path and sparking a fire that consumed the lead car?

A faulty third rail? 

Lawyers for the estates of those who died say were it not for Metro-North’s faulty design of the third rail, everyone in the lead car would have survived and nine others wouldn’t have been injured. The remaining 625 passengers, riding in the seven cars behind the lead, were not injured.

“But for the dangerous design of the third rail, NO ONE INSIDE THE TRAIN would have gotten hurt, NOT EVEN A SCRATCH,” attorney Natascia Ayers wrote in court papers filed in State Supreme Court in Westchester, New York, in April.

Killed were Walter Liedtke, 69, and Eric Vandercar, 53, both of Bedford Hills, New York; Aditya Tomar, 41, of Danbury, Connecticut; Robert Dirks, 36, of Chappaqua, New York; and Joseph Nadol, 42 of Ossining, New York.

Metro-North attorney Philip DiBerardino said Ayers' claim about the third rail design is off the mark.

"Plaintiffs' bald statement is unsupported by any evidence, and, as such, amounts to sheer speculation," DiBerardino wrote in May.

Metro-North says Brody is to blame for the accident for illegally stopping on a grade crossing equipped with warning devices, flashing lights and automatic gates that were all in good working order. The railroad, along with the Town of Mount Pleasant, New York, is suing her husband, Alan Brody, the administrator of his wife’s estate.

Brody, meanwhile, is suing Metro-North and Mount Pleasant, claiming his wife was trapped on an unsafe crossing and unaware she was on railroad tracks. His lawyer, Philip Russotti, says a faulty signal system didn’t provide cars enough time to clear an intersection at the crossing.

In 2017, the NTSB concluded Brody’s actions caused the crash, while noting the third rail design led to the loss of life.

“This accident demonstrated that Metro-North’s third rail assembly catastrophically compromised a passenger railcar with fatal consequences,” the NTSB said in July 2017. “Metro-North’s third rail system penetrated the passenger compartment and broke apart at the splice bars. The third rail entering the lead railcar caused significant damage and increased the number and severity of injuries and fatalities.”

The NTSB recommended Metro-North, along with other commuter rails in the northeast, conduct risk assessments for all grade crossings that have third rail systems and follow through with corrections to minimize such risks.

In October, former MTA chairman Joseph Lhota, in a letter to the NTSB, said a consultant hired to conduct the assessment concluded the railroad was following adequate risk reduction strategies.

“The risk assessment team determined that although such an event could be catastrophic, it is extremely improbable,” Lhota wrote.

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'Death, destruction, carnage'

After Train 659 crashed into Brody’s SUV, some 343 feet of third rail entered to the left of the lead car beside the train wheels and came up through the floor of the car.

Altogether 11 sections of third rail, five of which were about 40 feet long, and weighed 2,000 pounds each, came to rest in the lead car, the NTSB noted.

When it pierced the car’s interior, the third rail brought sparks and flaming debris, contributing to a fire caused when gasoline from the SUV leaked onto the cover of the third rail, the NTSB found.

An ordinary evening commute, on a 20-degree February night, quickly turned into something resembling a war zone.

One passenger watched as a fellow passenger was struck in the head by a section of rail. Another used his jacket to put out fire consuming a fellow passenger.

Four in the lead car were killed by blunt force trauma and surface burns obscured injuries to the fifth who died, the NTSB found.

All five had extensive surface burns.

Passengers climbed over bodies as they tried to find a way out through emergency windows. A section of third rail blocked passage to the second car.

One passenger escorting a woman to safety counseled her to look up so she wouldn’t see the body on the floor. Another offered his belt as a tourniquet to a woman assisting a passenger whose leg had been severed below the knee.

Meanwhile, smoke began to fill the lead car.  Some described it as “acrid” or pungent, likening it to the scent of burning plastic.

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As emergency workers scrambled to get to the scene, passengers helped one another out the emergency windows and down onto the snow-covered embankment beside a cemetery.

“I remember the first breath of air was incredible,” one passenger told the NTSB. “It was the most sort of comforting and satisfying breath of air I think I’ve ever had. Like a Peppermint Patty.”

One passenger whose leg had been shattered begged fellow passengers to move him away from the rail because he feared the SUV was about to explode. Several were escorted across to a nearby gym where they washed away blood that splattered their face and clothing.

Outside the lead car several passengers who’d escaped through windows were trying to figure out what to do next.

 “And, at some I think I looked back and the entire train car is engulfed in flames, and I mean, you know, not to be dramatic about it but it was just unbelievably quiet and serene, you know and just eerie,” one passenger said. “I mean death, destruction, carnage, whatever, and the fact that you just have flames flying out of this train car, out of every window of the train car and, you know, there’s like 8 or 10 of us standing there … in complete shock and disbelief.”

1984 fatality at same crossing 

In 1984 at the same Commerce Street crossing, a van driven by Gerard Dunne, a 21-year-old cable technician from Stony Point, was struck by a Metro-North train while Dunne was on his way to a service call.

The engineer on train 963 told police he saw Dunne’s van approaching the crossing at a high rate of speed, according to an Oct. 11, 1984 police report included in court filings in the Valhalla litigation.

“I could see the red warning lights operating at the crossing,” the engineer told police. “I then realized that the van was not going to slow down and was trying to beat the train to the crossing. I put the train into the emergency braking mode, but was unable to stop prior to hitting the van.”

At the time, the crossing did not have gates.

Dunne died nearly three weeks later.

No one on Train 963 was seriously injured in the accident which occurred at 6:05 p.m., around the same time as the Valhalla crash. And, like the 2015 accident, a small fire broke out when the van’s fuel tank exploded and gasoline came in contract with sparks from the electrified third rail.

Unlike the Valhalla crash, the third rail broke apart and did not enter the train.

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And so, Metro-North officials told the NTSB, they assumed that in 2015 the third rail would have responded similarly and broken apart without penetrating the train, court papers say.

Metro-North’s power director told the NTSB he believed the design and materials in the splice bars allowed them to break away when a large force hits them.

“The basis of the power director’s belief was a 1984 accident at the Commerce Street grade crossing in which the third rail broke away from the train and did not damage the train,” the NTSB wrote in an 80-page report issued in July 2017.

Attorneys representing the dead passengers’ estates say the 1984 accident should have alerted Metro-North to a flaw in the crossing's design, which allowed cars to come in contact with the third rail. 

"Defendants' design and installation of the electrified third rail in 1982-83 should have anticipated a car being struck and dragged down the tracks, and therefore designed and installed to avoid impacting the rail," Ayers wrote in April. 

And she said the third rail should have been designed as a frangible or breakaway system. 

Passengers wonder how they survived 

Attorney Andrew Maloney, who represents Tomar’s estate, says when Brody’s SUV was pushed down the track, the back end of the car sloped down the embankment.

“The back end of the SUV goes down even lower and the front effectively acts like a crow bar, raising up the third rail,” Maloney said.

The third rail should have been built in a way that allows for it to come apart on impact, the standard followed by experts in transportation design, Maloney added.

“On highways and airports, signs and light fixtures are bolted down at the base with frangible material so that when a car or airplane hits them, they break and fall away by the side rather than crushing or shredding the vehicle or airplane,” Maloney said.

“Metro-North design engineers and safety analysts were on notice that in the transportation world, you must anticipate accidents and collisions with fixtures in the transportation path,” Maloney added. “Not addressing this by at least having a frangible third rail system that would break away harmlessly during a collision is a huge problem.”

Maloney and others representing the estates say that, aside from the third rail design, Smalls is to blame for failing to apply the brakes in time. Smalls settled his legal claim against Metro-North, which attorneys say is the only such settlement so far. The terms were not disclosed. 

In the days after the accident, the lead car’s surviving passengers told their NTSB interviewers they had pored through news reports trying to figure out exactly what happened.

Some were unsure whether it was the third rail that pierced their car or whether it was the Harlem Line rail coming up through the floor.

“I’m wondering whether you can tell me, if you know, that the rail that went through the first car in the second car, did that pass through the top of the car or the bottom of the car?,” one passenger asked as his interview was wrapping up.

“Well, I can tell you one thing,” the NTSB interviewer said. “You’re very lucky.”

Follow Thomas C. Zambito on Twitter: @TomZambito