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Union Pacific Settles Wrongful Death Suit

Two died when struck by train at crossing...

Union Pacific Railroad Co. and its employee confidentially settled a wrongful death lawsuit brought by the relatives of a preacher and his grandson, who both died after being struck by a train in southeast Kansas.

On June 19, 2008, Allen Bogart and his grandson Tony Bogart were heading home after dinner at a local steakhouse. Tony Bogart was driving. The two were pass- ing over a grade, or ground level, railroad crossing when they were hit by a Union Pacific freight train driven by Paul Manley.

A combination of factors po- tentially contributed to the lethal crash. A railroad crossbuck sign that stood 70 feet before the track - farther back than recognized industry standards - could and should have been closer, said plain- tiffs' attorney José M. Bautista.

There were no flashing lights or automatic gates at the crossing, either, which are recognized as higher-level warning devices and are required by law at more dan- gerous crossings, he said.

Finally, railroad cars parked near the crossing and a tree line could have confused Tony Bogart or hindered his line of vision, Bautista said.

Describing the scenery from the same direction the Bogarts were driving, plaintiffs' attorney Robert C. Sullivan said there was a set of railroad cars parked on an adjacent stub rail on the left next to the cross- ing. The train approached from the right where the tree line was. The Bogarts may have focused on the parked railroad cars just before the impact, Sullivan said.

"A reasonable driver would have at least looked at those parked rail- road cars for a couple of seconds," he said. "The driver would have to determine the railroad cars were not going to move. Once he de- termined they were stationary, the driver then has to get close enough to see that a train is not coming from behind the parked railroad cars. At that point, you're almost on top of the tracks."

Complicating these factors and the plaintiffs' case were Tony Bogart's cellphone records, which indicated he might have been tex- ting at the time of the crash. An onboard locomotive video camera, or a track image recorder (TIR), seemed to support the notion that Bogart was unaware of the cross- ing, as it captured the incident and appeared to show that his vehicle did not slow down or stop before the collision.

Although plaintiff attorney Sullivan acknowledged the video evidence would be difficult to over- come at trial, he said the plaintiffs were armed with evidence that the crossing was a particularly danger- ous one, given the trees and parked cars, noncompliance on signage, and prior close calls Union Pacific recorded.

Before the scheduled trial, the court denied the defendants' pre- emption-based summary judg- ment. The defendant's motion for the judgment stemmed from CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), a Supreme Court case that stood for the gen- eral proposition that if the federal government actually paid for the warning devices at a specific cross- ing, then plaintiffs in cases such as this one could not sue railroad companies for the inadequacy of those devices, Bautista said.

Bautista said the denial of the summary judgment might have played a part in the resolution.

"Preemption is always a major part of the railroad's defense," he said.

Bautista also noted that preemp- tion claims have lost ground since 2007, when Congress enacted the Preemption Clarification in 49 U.S.C. s 20106 (2007), which he says some attorneys interpret as a rejection of preemption in cases such as these.

A confidential settlement was reached two months before the jury trial was set to begin in Division 17.

Defense attorney Craig Leff said he had no comment on the case.

- Anna Vitale 

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