“Based on this evidence, I feel it’s more likely an accident than criminal negligence,” Philadelphia Municipal Court Judge Thomas F. Gehret said after a preliminary hearing for Bostian, 34. Bostian was arrested in May after the family of a crash victim filed a private criminal complaint, and another judge overruled prosecutors who said there wasn’t enough evidence against him, The Associated Press reported on Sept. 12. In court documents, Bostian’s lawyers argued that the unusual circumstances leading to his arrest, as the statute of limitations loomed, had violated his due process rights.
Amtrak 188, an eastbound Washington-New York Northeast Regional, derailed on Frankford Curve in North Philadelphia after accelerating to 106 mph. The curve was speed-restricted to 50 mph, but at the time was not equipped with an enforced speed code for eastbound trains. Nor was ACSES, Amtrak’s version of PTC, activated there. Following the wreck, Amtrak installed speed codes on all non-equipped curves. By the end of 2015, ACSES had been activated on the entire NEC.
The National Transportation Safety Board concluded that Bostian lost track of where 188 was because he was distracted by an incident with a nearby SEPTA commuter train.
At Tuesday’s hearing, Blair Berman, a passenger who survived the wreck, testified that she encountered Bostian when she regained consciousness. She said Bostian appeared alert and aware and that he was able to tell her where along the route the train had crashed.
But Philadelphia Police Department Detective Joseph Knoll, also testifying, said Bostian didn’t seem to know where he was when he arrived at a hospital a few miles from the crash scene. “Are we in New York?” Bostian asked nurses and others as he walked into the hospital, according to Knoll, who added he could tell Bostian was injured in the crash because he had a visible head wound. Knoll said he didn’t know the engineer had suffered a concussion.
The NTSB found no evidence that Bostian was impaired or using a cellphone. But Tuesday’s testimony revealed that he had a second electronic device, a tablet computer, with him the night of the crash. Eric McClendon from the Philadelphia Police Department’s bomb disposal unit said he found a tablet computer inside Bostian’s backpack in the locomotive. But the device later went missing and was never examined by NTSB investigators for possible use while Bostian was operating the train.