Railroad accused of failing to warn boy not to play on tracks

Michelle Massey, East Texas Bureau Nov. 8, 2010, 6:19am

MARSHALL-The mother of a 14-year-old boy who was struck by a train while playing on a trestle has filed a lawsuit against the railroad, arguing the train should have warned of its approached.

Heather Dawn Thompson, individually, and as representative of the estate of Michael Xavier Colgrove, deceased, filed suit against Union Pacific Railroad Co. on Oct. 27 in the Eastern District of Texas, Marshall Division.

The incident occurred at around noon Nov. 15, 2008, as Michael Xavier Colgrove and three others were walking down the railroad tracks to an Anderson County trestle known as "Long Lake Bridge."

While they were standing on the trestle, a Union Pacific train appeared and struck Colgrove, causing his death, the suit states.

The lawsuit argues the train appeared suddenly and without any kind of warning.

According to a local news report, Colgrove, his 30-year-old stepfather, his 11-year-old brother and a 14-year-old friend had parked off a country road in Long Lake to go shooting and had walked approximately half a mile down the railroad tracks to the trestle.

They were almost at the opposite end of the trestle when the incident occurred.

Anderson County Chief Deputy Troy Black stated, "When the train came around the bend, everybody laid down, but this one boy didn't make it. There's very little room."

The defendant is accused of failing to keep a proper lookout for persons on the track or right-of-way, failing to give warning signals or otherwise warn of the approach of the train, failing to slacken the train's speed when they saw or should have seen Colgrove in clear view on the tracks or right-of-way and failing to apply the brakes on the train within a safe distance after observing Colgrove.

Thompson argues that the area where the accident occurred is an attractive nuisance, attracting the 14-year-old boy into harm's way.

"Union Pacific knew or should have known that this Trestle constituted an unreasonable risk of harm to young boys and failed to do anything about such condition," the lawsuit states.

The plaintiff is seeking more than $100,000 in damages for mental anguish, loss of moral support, care, advice, comfort, counsel, love and affection from her deceased son and on behalf of the deceased, damages for emotional pain, torment, pre-impact fear, physical pain and mental anguish.

The plaintiff is also asking for an award of interest and court costs.

Thompson is represented by Palestine attorney Dick Swift and Curtis W. Fitzgerald of Garnder & Fitzgerald in Sugarland.

U.S. District Judge T. John Ward is assigned to the case.

Case No. 2:10-cv-00451

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