Union Pacific Can Keep $3M Insurance Settlement in Fatal Ark. Train Crash
Texas / South Central News • December 6, 2006
An insurance company does not have a valid claim to more than $3 million it tentatively paid in a settlement over an Arkansas Union Pacific train crash with a van that killed a Louisiana woman and ...
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Subject: And now ......... for the rest of the story ............
Posted On: January 15, 2008, 9:55 am CST
Posted By: Mark Bodine
Comment:
I am Tri State's attorney. I personally read the accident report and the flaggers' and Union Pacific personnels' statements. While the article is factual, it tends to imply facts that are not true. Here is the rest of the story.
This crossing was not protected by warning gates (lowering arms). The crossing was protected by cross bucks and flashing lights. The intersecting road was a two lane rural road. The crossing was not protected by a stop sign. This intersection is described in RR terms as a "Passive Crossing." Here is an interesting article regarding train vs. automobile accidents, and driver perception of the dangers of RR crossings. http://www.fra.dot.gov/downloads/safety/cross_chp4.pdf
You probably have noticed that flaggers are not present at every railroad crossing. In fact, flaggers are rarely present at crossings. This accident occurred while UP was undertaking a replacement operation of the signals at this crossing. Flaggers do not and did not interfere with, compete with, or contradict operating signals at RR crossings. Tri State had no involvement with the signals.
While these flaggers were employed by a Tri State subcontractor, they received their instructions from UP personnel. In this case, the flaggers were on "stand by" to provide warning instructions to motorist when the signals were not operating. The flaggers are not advised of train schedules. Flaggers are only used when requested by UP personnel. Flaggers are only used when signals are inoperative, or head to head traffic must be directed. No Tri State flagger has EVER left his post leaving a crossing unprotected by its usual and customary warning devices.
The flaggers at this scene were advised by UP personnel that they would not be needed and could go to lunch. During lunch time, no person was flagging or otherwise directing traffic at the crossing. Numerous UP employees who were present at the time of the collision, stated the warning signals were in operation at the time of the accident. A UP foreman confirmed to police and investigators that the flaggers were relieved from duty by UP personnel and advised to take a lunch break.
It is standard protocol to lay down "Flagger Ahead" signs, when a flagger is not present. This is intended to keep drivers from becoming desensitized to legitimate traffic control signs after observing false messages. The "Flagger Ahead" sign (300 feet before the crossing) was placed face down in the ditch before the flaggers went to lunch.
Mr. Heathington was critical of the sign laying down in the ditch, because it provided a "distraction," to passing motorist. It was unclear how the sign laying face down in the ditch provided a distraction, but the signs warning of a "Rail Road Crossing Ahead," a reduction of Speed Advisory sign, and "Construction Ahead" were not "distracting" enough to garner Mr. Johnson's attention. The only signs placed by the flagging crew were the "Road Construction Ahead" sign and "Flaggers Ahead" sign (not displayed at the time of the accident). All other standard and typical signs were present and installed by UP or the State. Here is the Arkansas state standard for dangerous RR crossings: http://www.fra.dot.gov/downloads/safety/cross_chp4.pdf
Mr Johnson's attorney were prepared to submit evidence that this crossing, which was on a two lane road in the middle of an S curve, was one of the most dangerous crossings in the State of Arkansas. Mr. Johnson's attorneys were prepared to show a jury that the crossing had suffered an average of one fatality a year for the last 15 years, and countless "near misses."
I believe Mr Heathington testified in his deposition that due to the curvature of the road, a motorist traveling the speed limit would be unable able to stop in time to avoid a collision if his first view was the flashing light on his side of the road. A motorist needed to see the train (on the outside side of the curve) or the flashing light on the opposite side of tracks in order to make a collision avoiding stop.
I suspect UP was concerned about the effectiveness of Mr. Johnson's attorneys. Less that a year before the settlement, Mr. Johnson's attorneys obtained a $120 million dollar judgment against Union Pacific. Here is an article on the verdict. http://www.lawyersusaonline.com/reprints/dbj18.htm
Tri State's insurance policy listed UP as an additional insured for any damages occurring during Tri State's "operations." The court held UP should be covered by Tri States insurance policy. It had nothing to do with the "fault" of Tri State.
I have used my real name, because I stand behind this statement. Most newspapers will not print editorials by those unwilling to stand behind them. In today's climate, avatars and pseudonyms are the standard for commentary blogs. I personally don't give any blogger (or what I call a blooger), who can't stand behind his real name after posting vicious commentaries, any credibility whatsoever. In the old days we called these lurkers ....... cowards.
Mark Bodine
Shawnee, Kansas
Subject: And now ......... for the rest of the story ............
This crossing was not protected by warning gates (lowering arms). The crossing was protected by cross bucks and flashing lights. The intersecting road was a two lane rural road. The crossing was not protected by a stop sign. This intersection is described in RR terms as a "Passive Crossing." Here is an interesting article regarding train vs. automobile accidents, and driver perception of the dangers of RR crossings. http://www.fra.dot.gov/downloads/safety/cross_chp4.pdf
You probably have noticed that flaggers are not present at every railroad crossing. In fact, flaggers are rarely present at crossings. This accident occurred while UP was undertaking a replacement operation of the signals at this crossing. Flaggers do not and did not interfere with, compete with, or contradict operating signals at RR crossings. Tri State had no involvement with the signals.
While these flaggers were employed by a Tri State subcontractor, they received their instructions from UP personnel. In this case, the flaggers were on "stand by" to provide warning instructions to motorist when the signals were not operating. The flaggers are not advised of train schedules. Flaggers are only used when requested by UP personnel. Flaggers are only used when signals are inoperative, or head to head traffic must be directed. No Tri State flagger has EVER left his post leaving a crossing unprotected by its usual and customary warning devices.
The flaggers at this scene were advised by UP personnel that they would not be needed and could go to lunch. During lunch time, no person was flagging or otherwise directing traffic at the crossing. Numerous UP employees who were present at the time of the collision, stated the warning signals were in operation at the time of the accident. A UP foreman confirmed to police and investigators that the flaggers were relieved from duty by UP personnel and advised to take a lunch break.
It is standard protocol to lay down "Flagger Ahead" signs, when a flagger is not present. This is intended to keep drivers from becoming desensitized to legitimate traffic control signs after observing false messages. The "Flagger Ahead" sign (300 feet before the crossing) was placed face down in the ditch before the flaggers went to lunch.
Mr. Heathington was critical of the sign laying down in the ditch, because it provided a "distraction," to passing motorist. It was unclear how the sign laying face down in the ditch provided a distraction, but the signs warning of a "Rail Road Crossing Ahead," a reduction of Speed Advisory sign, and "Construction Ahead" were not "distracting" enough to garner Mr. Johnson's attention. The only signs placed by the flagging crew were the "Road Construction Ahead" sign and "Flaggers Ahead" sign (not displayed at the time of the accident). All other standard and typical signs were present and installed by UP or the State. Here is the Arkansas state standard for dangerous RR crossings: http://www.fra.dot.gov/downloads/safety/cross_chp4.pdf
Mr Johnson's attorney were prepared to submit evidence that this crossing, which was on a two lane road in the middle of an S curve, was one of the most dangerous crossings in the State of Arkansas. Mr. Johnson's attorneys were prepared to show a jury that the crossing had suffered an average of one fatality a year for the last 15 years, and countless "near misses."
I believe Mr Heathington testified in his deposition that due to the curvature of the road, a motorist traveling the speed limit would be unable able to stop in time to avoid a collision if his first view was the flashing light on his side of the road. A motorist needed to see the train (on the outside side of the curve) or the flashing light on the opposite side of tracks in order to make a collision avoiding stop.
I suspect UP was concerned about the effectiveness of Mr. Johnson's attorneys. Less that a year before the settlement, Mr. Johnson's attorneys obtained a $120 million dollar judgment against Union Pacific. Here is an article on the verdict. http://www.lawyersusaonline.com/reprints/dbj18.htm
Tri State's insurance policy listed UP as an additional insured for any damages occurring during Tri State's "operations." The court held UP should be covered by Tri States insurance policy. It had nothing to do with the "fault" of Tri State.
I have used my real name, because I stand behind this statement. Most newspapers will not print editorials by those unwilling to stand behind them. In today's climate, avatars and pseudonyms are the standard for commentary blogs. I personally don't give any blogger (or what I call a blooger), who can't stand behind his real name after posting vicious commentaries, any credibility whatsoever. In the old days we called these lurkers ....... cowards.
Mark Bodine
Shawnee, Kansas