Mother of Nebraska boy killed by train can proceed with suit

While I feel sorry for the mom, I don't think she is entitled to a dime.

I agree with C.W. above. Very unfortunate mishap, but I don't see how UP could be at fault when someone bypassed the safety gates and signals they had installed to keep this from happening?

Looks like a jury will decide. I feel for the mother but what could UP of done differently?  Nothing in my opinion.

Totally agree with C.W., she doesn't deserve any monetary reward for her son's stupidity, and total disregard for the warning gates.

Seems like natural selection at work. Can't fix stupid.

At some xings in my area the RR has the number of tracks displayed on a sign.  I wander if the number of tracks were displayed at this xing.  Just curious.  As much as I feel bad as to what happened, if he went around the gates when they were still down, too bad.  His fault.  Maybe the parents should have taught him better.

Rick

For those that know the Northeast  run  thru Perth Amboy especially Catherine Street where I grew up had to be 5 or 6 active lines at the time, no fencing at all . We were taught to wait untill a train had left before we crossed the tracks. None of us got killed growing up. Sure do miss the smell of the loco`s .

Have to agree, railroad was harmless, the kid was wrong and died for it.

Maybe the kid was confused by the red flashing lights, and the crossing gates being down.

How any judge could determine that UP had been negligent is completely beyond me. The article questioned whether the warning sound had been made for full fifteen seconds? How can anyone know that unless there was a recoding done in conjunction with the exact placement of the loco? What else could the railroad have done?

rtr12 posted:

I agree with C.W. above. Very unfortunate mishap, but I don't see how UP could be at fault when someone bypassed the safety gates and signals they had installed to keep this from happening?

I too agree with C.W.! However you can not always fix stupid.

I feel sorry for the mom but she should have taught him better.

I was taking with my aunt the other week and she is very fortunate to be alive today as she was with a couple of girls from high school in the 1940's when the car was stalled on the tracks near Reading PA. Fortunately they got the car off the tracks just in time not to be hit by the steam engine. Another time one of her friends hit a trolley car in town and knocked it off the track on the one end.

I live in southeast Florida and FEC has been talking about installing some kind of fence at the crossings, it would come up when a train was approaching a crossing just like the gates come down currently, this would be in addition to the gates.

Lee Fritz

Scrapiron Scher posted:

.... How can anyone know that unless there was a recoding done in conjunction with the exact placement of the loco? .....

Aren't newer locomotives now required to record horn operation?

Combined with the record of brake application, train speed, and safety gate triggering .....  correct/incorrect horn operation could be determined?

I sure don't know about such things.

Still, the kid disregarded the lowered gates. And, still .... a horrible tragedy.

I don't care whether the horn sounded for 14 seconds or 16 seconds or whether there was or wasn't a sign displaying the number of tracks.  If the gates are down and the lights are flashing, you don't cross.  Period.

I have sympathy for the mother, but only for the loss of her son.

Steven J. Serenska

If the gates were still down...no money...sorry.

A political ruling by the court.  The lawyers are pushing it.

It was interesting to note that when the rails went back on the Montour (Bike) Trail , Old Montour RR., a few years ago, even a trail parking lot got crossing gates.

Galati Road Parking, to the left, this picture.  Most intense crossing is RT 50 not far from this parking lot.  There are three sets of gates with-in a half mile.

Southview Rd. crossing gates. No more than one thousand feet from the parking lot.

Route 50 crossing, gates were installed.  Also note that there is a third gate that shuts Weaver Environmental's truck entrance right in this picture.  Yep  Three gates on this crossing.  Wheeling Lake Erie RR.

 One of the really bad bike crossings, Montour trail, Cliff Mine Rd. near the Pittsburgh Airport, has a controlled flasher for the bike traffic. I walk the bike across this road.

The flashing red mean bike traffic stops.

Those who frequent the Rail trail/bike trails will see white ghost bicycles at road crossings, a reminder that someone has died at that crossing.

C W Burfle posted:

While I feel sorry for the mom, I don't think she is entitled to a dime.

I actually agree with you on an emotional/gut level but agree with the court's decision for purely technical reasons. The issue here is that there were issues of fact that needed to be determined and that's handled at the trial level. They're not saying whether or not UP is liable, but that there should be a trial. One question is regarding whether or not the horn was sounded by the second train. Irrespective of the presence of another train, my recollection is that they're supposed to sound the horn when approaching a grade crossing. If not, there's a potential policy violation which can represent negligence. Whether that outweighs the kid's negligence (read stupidity) in going round the gates is for a jury to decide as the finder of fact (i.e, the jury). I'm not sure whether Nebraska is a contributory (plaintiff's negligence is a complete bar to recovery) or comparative (apportioned) negligence jurisdiction.

Like the McDonald's coffee suit, there's more to it than the media talks about.

AGHRMatt posted:

C W Burfle posted:

While I feel sorry for the mom, I don't think she is entitled to a dime.

I actually agree with you on an emotional/gut level but agree with the court's decision for purely technical reasons. The issue here is that there were issues of fact that needed to be determined and that's handled at the trial level. They're not saying whether or not UP is liable, but that there should be a trial. One question is regarding whether or not the horn was sounded by the second train. Irrespective of the presence of another train, my recollection is that they're supposed to sound the horn when approaching a grade crossing. If not, there's a potential policy violation which can represent negligence. Whether that outweighs the kid's negligence (read stupidity) in going round the gates is for a jury to decide as the finder of fact (i.e, the jury). I'm not sure whether Nebraska is a contributory (plaintiff's negligence is a complete bar to recovery) or comparative (apportioned) negligence jurisdiction.

Like the McDonald's coffee suit, there's more to it than the media talks about.

Yes, there is "more than the media talks about", however there would have been in in-cab forward facing, recording camera, along with the event recorder, which should/will remove all doubt at any future trial.

One of my Conrail/Norfolk & Southern conductor friends, who recently retired, operated a train from Conway Yard, PA  to Toledo, Ohio.  He said that there were over 200 crossings, that he was responsible for blowing the horn.  The train automatically trips the gate, via a grounded rail section, but the whistle horn is still subject to human control.  The gates, and gate operating system require maintenance and testing. 

I was surprised, how large the control panel was for operating gates.  Got to be some redundant, and back-up systems in a box this big.

Southview Rd. Crossing gate control panel.  There's got to be bells and whistle related to these crossing gates as well as the mechanical arm and flashing lights.  Technology probably exist to automatically blow the horn on the lead engine. IMO.  A long way from the STOP LOOK and LISTEN cross buck signs.

Mike CT posted:

On of my Conrail/Norfolk & Southern conductor friends, who recently retired, operated a train from Conway Yard, PA  to Toledo, Ohio.  He said that there were over 200 crossings that he was responsible for blowing the horn. 

That's interesting, as throughout my entire railroad career, I NEVER witnessed the Conductor "blowing the horn"!

This type of  set up is very dangerous... One train clears the crossing just as another enters the crossing.  Train crews  have had some close encounter's with this type of set up and  I suspect the horn was blasting away.   I wasn't there  but know of similar instances  were a young boy was killed in the same type of accident....   Even though Up is probably not neglect it's a big company with  lots of money . The family will get something. however that will  never   take the place of a child..... The world can be cruel sometimes.

Hot Water posted:

Mike CT posted:

On of my Conrail/Norfolk & Southern conductor friends, who recently retired, operated a train from Conway Yard, PA  to Toledo, Ohio.  He said that there were over 200 crossings that he was responsible for blowing the horn. 

That's interesting, as throughout my entire railroad career, I NEVER witnessed the Conductor "blowing the horn"!

We had some  Grand Trunk engines in Toronto a few years back (actually quite a few) with a whistle chord on both sides of the engine.  .

Several alerts by members so editing took place to follow the rules....keep the political comments either to yourself or email them privately to each other.

Hot Water posted:

Mike CT posted:

On of my Conrail/Norfolk & Southern conductor friends, who recently retired, operated a train from Conway Yard, PA  to Toledo, Ohio.  He said that there were over 200 crossings that he was responsible for blowing the horn. 

That's interesting, as throughout my entire railroad career, I NEVER witnessed the Conductor "blowing the horn"!

My error??  Does the engineer blow the horn??  Glad we straighten that out.  

Even when the RR goes away, or becomes a bike trail, there are problems.   The white Ghost Bikes are a memorial to someone.  I've seen many. 

Hot Water posted:

AGHRMatt posted:

C W Burfle posted:

While I feel sorry for the mom, I don't think she is entitled to a dime.

I actually agree with you on an emotional/gut level but agree with the court's decision for purely technical reasons. The issue here is that there were issues of fact that needed to be determined and that's handled at the trial level. They're not saying whether or not UP is liable, but that there should be a trial. One question is regarding whether or not the horn was sounded by the second train. Irrespective of the presence of another train, my recollection is that they're supposed to sound the horn when approaching a grade crossing. If not, there's a potential policy violation which can represent negligence. Whether that outweighs the kid's negligence (read stupidity) in going round the gates is for a jury to decide as the finder of fact (i.e, the jury). I'm not sure whether Nebraska is a contributory (plaintiff's negligence is a complete bar to recovery) or comparative (apportioned) negligence jurisdiction.

Like the McDonald's coffee suit, there's more to it than the media talks about.

Yes, there is "more than the media talks about", however there would have been in in-cab forward facing, recording camera, along with the event recorder, which should/will remove all doubt at any future trial.

Absolutely. I think the trial will be short depending on how quickly the cab cam video gets into evidence.

I feel for the boy's parents.  Growing up near the railroad, it's a small miracle I don't know many that were maimed or killed.  Whether the railroad is negligent is culpable will be determined at trial.  That said, better to be safe than sorry around railroad tracks! 

a Google search of the mother's name turned up this...

Background: Thirteen-year-old Efrain Ramos-Domingo (Efrain) was killed by a Union Pacific Railroad Company (Union Pacific) train in Schuyler, Nebraska, on July 27, 2005.  Two days later, Efrain’s mother, Manuela Domingo Gaspar Gonzalez (Manuela), was approached by a Union Pacific claims representative and signed a document releasing Union Pacific from liability for Efrain’s death, in exchange for $15,000.  Manuela filed a complaint in district court alleging claims for wrongful death and breach of fiduciary duty.  Manuela alleged that she had not understood the meaning of the release and had not known that by signing the release, she was giving up the right to pursue legal action against Union Pacific arising from Efrain’s death.  She alleged that Union Pacific’s claims representative had not advised her of the legal consequences of signing the release.

Issues: (i) Whether Manuela alleged facts (or could allege facts) sufficient to support an inference that the release is void or voidable? (ii) Whether Union Pacific had a fiduciary duty to act in Manuela’s interests?

so the basis of the overturned ruling had to do with the claim that UP did not fairly represent the settlement which essentially negated the release.  frankly i can see how this doesn't make big corporations look very good.

the brief stated that the incident took place at a grade crossing by a school in Schuyler, Neb.  going to Google maps street view, there are two likely crossings and both look just about the same...

as i believe i read in one of the articles, my guess is that they will claim that there is no pedestrian gate on the sidewalk, only on the right hand side of the road for traffic.  i definitely think the kid was 100% at fault, but just thought i'd add a few facts about the case.

cheers...gary

Gary:

Thanks for this. Your post proves there are (at least) two sides to every story.

I am interested to see any and all facts presented in court.

Steven J. Serenska

I was on an Amtrak train that hit and killed a woman in similar circumstances at Jack London Square in Oakland, CA.  The double track UP (former SP) mainline runs down the middle of the street in this tourist area.   This former industrial area is being becoming heavily residential with movie theaters, restaurants and many new apartment and condo buildings.

An East bound UP freight train had just cleared the crossing next to the movie theater when a woman walked behind the last car of the freight and in front of my Amtrak train which was proceeding West bound.  The street and side walk gates were down.  I heard the Amtrak train's horn but I don't know if it was before the engineer saw the woman or not or it was just blowing for the crossing.

It is unfortunate but this type of accident is fairly common in multiple track situations.  

NH Joe 

THE GATES WERE DOWN........case dismissed.

I number of years ago a executive exited the train in the Middletown NJ Station and without even looking came around the tail car and into the engine of the train going the other way. So even adults dont think sometimes too.

Gentlemen,

    Not being up on that states laws, this may all be thrown out of court, Federal Railroad Laws govern the Railroad safety requirements. The gates were working & in proper order,  the boy violated the law by proceeding on to the Railroad tracks.  Unless there is something else we are not being told about this case, I doubt the state law changes anything when it comes to actual Federal Railroad safety law.

PCRR/Dave

I grew up near Edmonds, Wa.  Trains used a photo taken on the Edmonds waterfront for the cover of their guide to train watching hot spots.  The photo shows the very busy BNSF mainline (former GN).  It sees over two dozen intermodal and manifest freights plus several Amtrak and Sounder passenger trains every day. 

Just behind the photographer is a public beach where my mom (the daughter of a railroader) and other neighborhood moms took my brother and me along with friends to play many times as children.  We always stopped building sand castles to watch the trains as they passed.  But our parents taught us to keep a safe distance or the consequences of disrespecting a train would be even more dire than the consequences of disobeying our parents instructions.  None of my childhood friends, my brother or I ever had a close call with a train.

A few years ago a college friend recounted how she took her toddler to a nearby beach and her child was almost hit by a passing train when she was distracted and her briefly unsupervised child wandered next to the tracks.  The mother was very upset by the incident and told me how irresponsibly she thought the railroad had acted by nearly hitting her small boy.  I replied "you let your toddler loose to play next to a transcontinental mainline and the railroad is irresponsible?"  She found that response to be, um, very unsupportive of her point of view.   Her mother and father also got the message across to her that trains running on train tracks are a predictable hazard and it is up to people (or the parents of little people) to stay off of their turf.  After that I don't think she or her children ever had another close call with a train.

Some important things have changed between my parents generation and the generation who are now the parents of school or preschool aged children.  Far fewer of today's parents grew up with railroader relatives or riding trains for travel.  Many did not grow up in towns where trains were part of every day life.  What used to be common sense has been lost.  Some even expect trains to avoid them.

Hopefully all the rail fans here can help inform the children and parents that we know that one should never assume that there is only one train at a time at a multiple track crossing and that disobeying crossing signals may be a death penalty offense. 

A court of law might grant an appeal.  A speeding locomotive won't.

If NE is like TX, the bike should be on the far right of the ROADWAY, not the SIDEWALK.

But UP's offer of settlement could be taken as "ambulance chasing".  That act might be the one thing this case could turn on.

However, parents are not teaching children to be responsible, especially in public places.

A quick search Crossing stats 1981 to 2014.

1981  there were 9461 incidents, 728 fatalities.

2014 there were 2287 incidents, 269 fatalities.

IMO in that time period, a lot of railroad has gone away, and there is a lot more road traffic.

Mike CT posted:

Even when the RR goes away, or becomes a bike trail, there are problems.   The white Ghost Bikes are a memorial to someone.  I've seen many. 

I thought this was always just some decoration / landscaping by the Montour trail.  It's really a memorial?

Having spent part of my early childhood living on "Depot Lane", from an early age,  I was always hanging out at the RR station, and playing near or even on the tracks (and ever mindful of keeping an eye out for smoke and a headlight),  I was early taught to be alert for and promptly relinquish the right of way if a train was coming, and to stay off the trestle.  It was not a double track or high traffic location.   I think it is a mistake for the RR representative to offer a settlement to the mother in this case, as that seems to be an admission of guilt, when I feel she and/or her son are guilty for not training him, or he not following warnings received from her (much less at the crossing).  However, in this sue-happy world, they go after the deep pockets and hope for a sympathetic and ignorant jury.   (I wonder if railroads ever countersue, on the basis that irresponsible actions of, say drivers driving a vehicle around the gates, cause financial loss to the RR for time lost, damage done, etc.?)

What those white bikes don't tell me is who/whom was at fault.

I was almost run over while I was LEGALLY using a crosswalk.  By someone on a BYCYCLE!

Pay attention to Matt.

Even if a jury were to find for the mom, the judge can find that the facts do not warrant the judgment.

There are a number of litigable issues here, none of which are likely to bring mom much more money than she already got.  Hopefully, her lawyer is doing this on contingency.

i am wrong about this stuff all the time.  Remember, in civil suits, lawyers are successful about half the time, if you don't count settlements.  This one could be a smart lawyer who knows that UP would rather pay a half mil than litigate this thing, and he gets a third.  Most of these things settle because it is cheaper to do so.