Wrongful death suit blames railroad for failing to maintain track right-of-way

Michelle Massey, East Texas Bureau Sep. 16, 2009, 8:58am

Mena Train Depot

FORT SMITH, Ark. – In need of cigarettes, Mena resident Luther Brazeel tied his dogs to a wagon at the old Mena Railroad Depot and walked across the railroad tracks to the tobacco store.

With two large trees blocking the view, a train's conductor and engineer were unable to see Brazeel as he walked along the tracks. Brazeel was struck and killed by the northbound Kansas City Southern train.

A few days after the incident, the trees were removed.

Danny Miller, administrator of Brazeel's estate, filed suit against KCS, Carl C. Myles, Steve Newcomer and the city of Mena on Aug. 11 in the Circuit Court of Polk County, Ark. Defendants removed the case to the Fort Smith federal court of the Western District of Arkansas on Sept. 11.

The plaintiff asserts that KCS owned, maintained and used the railroad tracks and right-of-way at the accident location.

The residents of Mena, he claims, "openly and notoriously" used the location as a walking path for more than 50 years. The lawsuit accuses the defendants of negligence for failing to provide a designated pedestrian crossing across the railroad tracks.

Brazeel's estate representative states that not only was the conductor and engineer's vision obstructed by the trees but also blocked Brazeel's view.

The lawsuit alleges that the defendants failed to keep the right-of-way clear of obstructions, failed to use ordinary care by giving an audible signal of the train's crossing, failed to keep an efficient and constant lookout and failed to warn of the dangers and hazards of the location.

The plaintiff states that the KCS violated its own rules by traveling at a high, unsafe and unreasonable speed that was also contrary to the agreement it had with the city of Mena.

According to court records, KCS did not accurately keep records and inaccurately classified the track, allowing the train to travel over 25 mph, frequently at speeds over 40 mph.

The plaintiff also believes that the city of Mena was negligent for failing to protect its community. In a 1989 agreement with KCS, the city agreed to erect and maintain a chain-link fence by the depot. However, the city breached the agreement because the fence was never installed, the suit claims.

The city of Mena states that it is not a proper party to the lawsuit as it has sovereign immunity based on Arkansas law.

The suit states that Brazeel was fatally hit in the head by either the train itself or some object extending from the train.

As a wrongful death beneficiary, the plaintiff is seeking damages for pecuniary loss and mental anguish.

Further, the plaintiff is seeking punitive damages, arguing that the defendants acted with reckless disregard of the consequences despite knowing that their conduct would result in injury and had resulted in injury in the past.

Defendant KCS denies the plaintiff's allegations and argues that Brazeel failed to keep a lookout, failed to yield the right-of-way, attempted to cross the KCS tracks in violation of Arkansas law and failed to act "as a reasonable and prudent person " would have acted under the circumstances.

Mena attorney Orvin Foster and Fort Smith attorney Daniel W.
Gilbreath are representing the plaintiff.

Jury trial is requested.

U.S. District Judge Jimm Larry Hendren will preside over the litigation.

Case No 2:09cv02107

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