Wright v. Arkansas & Missouri Railroad

I concur in the principal opinion affirming the district court on all issues, but I write separately to advocate a different approach to the Locomotive Inspection Act claim. The majority adopts a “totality of the circumstances” test to evaluate whether the accident occurred when the locomotive was “in use,” which is a prerequisite to liability under the LIA. But the locomotive in this case was “blue flagged,” which means, under LIA regulations, that the railroad is prohibited from moving the locomotive, and which is to say that the locomotive cannot be put “in use.” A better rule then, in my…