Stack to hear dismissal moves in case brought by man hit by Norfolk Southern train

Amelia Flood Oct. 28, 2010, 11:30am


The defendants in a suit filed by a man hit by a train following a Staunton homecoming celebration three years ago are moving to dismiss plaintiff John Whitt's case.

Madison County Circuit Judge Daniel Stack is set to hear the dismissal moves filed by defendants Norfolk Southern Railway Company, NSR employee Travis Atchison and fellow employee Paul Holden Friday at 9 a.m.

Whitt is suing the railroad and the two employees for damages in excess of $50,000 and other relief.

Whitt claims that Holden and Atchison, part of one of the railroad's train crews, did not stop the Norfolk Southern train from hitting him as he lay unconscious on tracks near the Staunton homecoming site.

Whitt claims he was on the tracks due to the after effects of an attack by unknown persons.

The case had briefly left Madison County for neighboring Macoupin County but came back when former presiding Judge Barbara Crowder rescinded the transfer order.

The defense tried unsuccessfully to send the case back to Macoupin in September.

The defendants filed their motions to dismiss in July.

In the motions, the defense claims Whitt was trespassing on the tracks because the crossing was a private, not public crossing.

The defense argues that under Illinois law the defendants did not have a duty to a trespasser because he was breaking the law at the time of the incident.

The defense also argues the plaintiff was not diligent about service as required by statute.

Charles Swartwout and Andrew Corkery represent the defendants.

Joseph Dulle represents Whitt.

The case is Madison case number 09-L-668.

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