Up Close: Railroad crossing safety in question

10:50 AM CDT on Tuesday, July 20, 2004

By Dave Fehling / 11 News

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KHOU-TV Brazoria County ranks fifth in Texas for rail crossing collisions.

Nowhere in Texas do trains collide more often with cars and trucks than in Houston. It's also bad in Brazoria County, which ranks fifth in the state for rail crossing collisions.

Who's usually at fault?

How could a driver not see or hear a train coming?

One tragic case from Brazoria County shows why questions are being raised across the country about how safe any of us are when we start across the tracks.

Gary Slater didn't look like a man who'd take chances. "Just appeared to be an older, more cautious driver," says attorney Rob Kwok.

So what happened to him at this railroad crossing in Brazoria County seemed to defy all logic.

Late one afternoon a few years ago, he drove a dump truck onto railroad tracks, right in front of a freight train. Slater was ejected through the front windshield to the ground below.

Gary Slater died and his family hired Rob Kwok to sue Union Pacific.

"The usual outcome is you lose, crossing cases are impossible to win." Kwok says.

But the family didn't lose. Late last month, a jury told Union Pacific to pay the Slaters $18 million. Why?

"They just don't seem to have a lot of concern for the public safety, in my opinion," says jury member Cheryl Kuykendall. "You shouldn't have to play that chicken game: is there a train coming or not. The railroad knew that crossing was dangerous."

Months before the accident, the crossing had been put on a state list of those needing lights and gates. They weren't here when Gary Slater drove in front of the train.

But it wasn't just that. "Its an example of a cover-up," says Kwok. He adds that the railroad should have known that, as school bus officials testified to in trial, you had to pull way up to the tracks to see around trees and bushes.

Yet, Kwok says shortly after the accident, the brush suddenly disappeared.

"They did a bang-up job of cutting down the overhanging tree limbs and clearing it out. But they made a mistake. They left the dead tree limbs on the ground. So our people were able to come out and take photographs of the downed tree limbs right adjacent to the crossing. Of course, the railroad denied that," Kwok says.

Charges of a cover-up and of corporate arrogance. But was the fatal accident that happened in Brazoria County somehow unique, or was it part of a bigger story?

By coincidence, just days after the verdict in Brazoria County, an investigative story in the New York Times said that in a recent year-and-a-half period, courts sanctioned Union Pacific for destroying or failing to preserve evidence in a half-dozen crossing accidents.

What's more, the Times found Union Pacific and other railroads failed to properly report fatal accidents to the government.

Union Pacific could not provide 11 News with an interview at their Houston office, but on its Web site, conceded its failure to notify Federal authorities of several dozen accidents by phone as required.

But it denied destroying evidence.

And referring to a case in Arkansas, said it did cut back vegetation there after an accident but not before "we carefully photographed the crossing to document the scene".

In general, the company said "No one wants to avoid grade-crossing accidents more than Union Pacific..." citing what it called its "comprehensive" safety program to install warnings and to keep crossings clear of brush.

In Brazoria County, the trains continue to roll and the crossing now seems well maintained.

But the jury in the case wanted something more. It wanted to order that Union Pacific make upgrades to other dangerous crossings.

"We would like to know something would get done by our verdict," says juror Cheryl Kuykendall.

But juries, they were told, don't have that kind of power. Their message, though, may still have been as clear as a train's whistle.