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An amazing story of a railroad’s careless conduct and the intense and lifelong consequences of such carelessness arose out of a recent 37.5 Million Dollar settlement that Kansas City Southern Railway Company (KCS) paid in October, 2006. I personally spoke with Tom Jones, one of the several trial lawyers with Davis, Bethune and Jones, who represented the entire family that was tragically injured when their Ford Expedition was crossing KCS’ tracks in Arcadia, a small town in Louisiana.

On August 1, 2001, their Expedition was smashed by a KCS train because none of the lights and gates were working at the crossing that Mrs. Kemp and her four daughters were crossing. Unknown to Mrs. Kemp, KCS was actually upgrading the crossing lights and gates at several railroad crossings in this small town. However, KCS had installed the lights and gates and had successfully tested them, but the railroad temporarily abandoned the crossing to complete other gates and lights at crossings nearby in the same town. The railway personnel temporarily covered the automatic lights with black dark plastic, and also removed the gates while they left the crossing and went to work on other crossings they were improving in the same town. When Mrs. Kemp and her daughters approached the crossing, all they saw was black plastic over the non-operative lights and assumed it was safe to cross when they were suddenly struck by the fast moving KCS train.

Mrs. Kemp, the driver, is on life support with a feeding tube, suffering quadriplegia, and experts placed her future medical care at a minimum 10 Million Dollars. One of her young daughters was killed and two others suffer brain injuries of various magnitude. When the law firm was first retained, the case was pending in Louisiana and the law firm had to battle for over a year for the right to file the suit in Missouri instead (they deemed a better jury venue) where KCS has corporate offices. After winning the right to continue the suit in Missouri, the case eventually went to trial for eight weeks. The law firm did extensive pre-trial research on the issues involved in the case, including extensive work with trial consultants and after having retained multiple experts on railroad crossing safety, traumatic brain injuries, medical issues, and the tremendous future projected increases in the medical expenses.

After eight weeks of trial, the jury began to deliberate the case. The parties arrived at a settlement in the sum of 37.5 Million Dollars while the jury was still deliberating in to the second day. According to one of the trial lawyers, Tom Jones, nine out of twelve jurors in Missouri must agree on a verdict. After the settlement, the victim’s attorneys interviewed the jurors and it was unclear what, if any, verdict the jury would have arrived at as many jurors expressed varying opinions on liability and the amount of damages suffered. I note that the plaintiffs sought 264 Million Dollars.

Jones explained that the railroad personnel indicated that the reason that they did not keep the crossing lights and gates operating once they had initially tested them, was that they were waiting to activate the crossing lights and gates in an electronic sequence with the other crossings that they were improving in the town. The railroad personnel said that they wanted to synchronize all of the new crossing gates and lights at one time. Mr. Jones calculated that it was a difference of only several man hours and several hundreds of dollars to leave the crossing devices working and then go back and sequence all the new crossing warning devices. Apparently, this was fairly devastating trial evidence.

Due to the tonnage of even one railroad locomotive, compared to a motor vehicle, every railroad crossing is a potentially devastating motor vehicle accident, so crossings must be properly marked and protected to avoid traps for unwary motorists. As I have written about previously (see other articles on my injury blog) simply adding stop signs at railroad crossings is not a safety measure that reduces crossing wrecks-instead a detailed study showed the opposite-they make them more dangerous. Usually advance warning (electronic devices) must be installed where trains move through an area at significant speeds.

Railroads involved in upgrading crossings with “active” warning devices (lights and gates) must do more to specify exactly what protection is necessary at such crossings even during ALL phases of the upgrade, yes, even during the actual installation of the electronic devices themselves. What a travesty that during the phase of installing the very electronic devices necessary as protection, that a railroad would turn them off for a few hours or even a day, and abandon the crossing to go work on other dangerous crossings!

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