Steele woman awarded $20 million in wrongful-death lawsuit

STEELE, Mo. -- The widow of a Southeast Missouri businessman killed in a collision with a train in 2012 was awarded $20 million in court this week.

After deliberating for just over two hours, a jury returned a wrongful-death verdict Tuesday in favor of Sherry Spence against Burlington Northern Santa Fe Railway. Spence is the wife of the late Scott Spence, a well-known businessman in the area who owned lumber mills in Steele and Portageville, Missouri.

Associate Circuit Judge Stephen Mitchell entered the sum of $19 million, plus court costs, to go to Sherry Spence after reducing the jury's verdict by the 5 percent fault attributable to Scott Spence, online court records show.

Scott Spence, 53, was killed in a collision with a BNSF train about 2 p.m. Oct. 20, 2012, according to a report by the Caruthersville Democrat Argus. The accident occurred as Spence, driving his 2000 Chevrolet Silverado east on Stoddard County Road 470, tried to cross the tracks. Spence, who was not wearing a seat belt, was thrown from the vehicle.

The driver of the train was not injured, and the train was driven from the scene with only minor damage, the article said.

The only signal at the intersection was a railroad crossing sign without lights or gates.

Defense attorney Laurel Stevenson of Springfield, Missouri, deferred all comments to a BNSF spokesman.

"BNSF respects the jury's time and effort it devoted to this case, and we will evaluate how best to address the multiple irregularities in the trial," BNSF spokesman Mike Trevino said. "While everyone recognizes the emotional and sympathetic nature of this grade-crossing accident, there was no evidence presented of negligence by the railroad, and the evidence clearly shows that the motorist did not stop at the crossing. Regardless of this litigation's ultimate outcome, BNSF recognizes the loss suffered by the Spence family and again extends its condolences."

"The jury understood that safety cannot be sacrificed for money," Cape Girardeau attorney J. Michael Ponder, who represented Spence, said in a news release. "This lawsuit was about accountability, to ensure additional lives aren't endangered merely to protect BNSF's bottom line. We're happy the jury held BNSF responsible for their actions by awarding this verdict."

In a joint written statement, Scott Spence's family said it was "very thankful for the jury's service. The family brought this case in order to hold BNSF accountable and hopefully prevent any future tragedies at dangerous railroad crossings. We all sincerely hope that BNSF will take this verdict as a signal it must improve its railroad crossings by cutting back vegetation so that trains are clearly visible and by installing lights and gates so they are safe for the public."

Ponder said their side of the argument had three components.

They argued the crossing was defective because it had "inappropriate sight distances" and no lights or gates.

They claimed the vegetation growing near the intersection was too close to the road, which obstructed visibility.

Their third claim was there was negligence on the part of the train crew, which should have been able to see Spence's vehicle approaching while it was a half-mile away, because the tracks and train sit much higher than the road, Ponder said.

Such a large verdict is not typical in Southeast Missouri.

"As far as I can remember, that's the largest verdict we've ever had in the area, I'd say south of St. Louis. So, yes, it's higher than normal."

The next-largest verdict Ponder could recall was a burn case in Scott County about a decade ago, in which $4 million was awarded.

While visibility was presented as the main issue in the Spence case, one thing that was not was the sounding of the train's horn.

Trains are required to blow their horns while approaching public grade crossings, according to the Federal Railroad Administration.

Engineers must begin to sound the horn at least 15 seconds and no more than 20 seconds before all public grade crossings.

If the train is traveling faster than 60 mph, engineers will not sound the horn until it is within a quarter-mile of the crossing, even if that makes the advance warning less than 15 seconds.

The train crew blew the horn, Ponder said. But he added FRA data show horns are not effective as a warning device, so it was not a consideration in the case.

Ponder said the railroad is responsible for maintenance at crossings.

To add a signal, it first must get permission from the state to ensure the signal is designed and placed correctly; the state "routinely" gives permission when asked, Ponder said.

Ponder said BNSF had not sought permission for a signal at that intersection.

"It was the railroad's position that the crossing was just fine. Wouldn't change a thing," he said.

He said there had been numerous near-misses, plus two crashes during the 1980s and one other fatality, in 1957.

"To me, it's a wonder more people haven't been killed," Ponder said.

Two sets of guidelines -- the American Association of State Highway Transportation Officials guidebook and the U.S. Department of Transportation's federal Railroad-Highway Grade Crossing Handbook -- dictate when and where a railroad should seek to have signals installed at crossings, Ponder said.

The Railroad-Highway Grade Crossing Handbook, revised in 2007, states: "The current practices of existing railroads in general are to consolidate and close grade crossings where feasible. The creation of new at-grade crossings is not a preferred approach to addressing highway mobility."

According to that handbook, one of every 10 crossing collisions resulted in death.

Stop signs at passive crossings have an unknown measure of effectiveness and cost $1,200 to $2,000, according to data in the handbook.

Flashing lights account for an 83 percent reduction in deaths in the U.S. over railroad crossing signs alone and cost $20,000 to $30,000.

Adding lights plus two gates, at an estimated cost of $150,000, resulted in a 100 percent reduction in deaths.

Ponder said it's estimated adding such a signal would cost about $200,000 over the life of the equipment, which is 20 to 25 years.

Ponder said a program exists in which the federal government distributes a certain amount of taxpayer money each year to states. The states rank all their railroad crossings and fix those determined to be the worst first.

"The problem is that amounts to about five crossings a year in a state. And, in fact, there's so little money that the state gets to do that, that they have had a 'three-death rule' at a crossing before they even look at it for improvement," he said.

Ponder claims BNSF waits for the state to identify crossings that are bad before spending money.

He said new leaders who took over in the Missouri Department of Transportation in 2011 have lowered the limit of fatalities to two, "but that's still two people got to get killed before they do anything."

Railroads are required by federal law to inspect tracks at least twice a week, Ponder said.

"The problem comes in that the railway inspectors are not inspecting for crossing safety," he said. "They are simply inspecting to see if the track is lined up right so that the train won't go off the rails. Or if they're looking at all for vegetation, it's just to make sure it's not hanging down in the way of the train. They have no analysis of whether the crossing is safe for motorists."

Ponder said MoDOT inspects a crossing only if it is tagged as a problem area by the state or the railroad.

Ponder speculates the rural crossings that are "bad as can be" will be fixed last because they see less traffic.

"I think there's probably a disparate impact on the country folks, simply because it is the higher-traffic crossings that get fixed first, because you're going to get to the three-death limit first if more people are using it."

In addition to his wife, Scott Spence was survived by two adult sons, Jonathan and Matthew, both of Steele.

Scott Spence was active in church organizations, Little League and the chamber of commerce, served on various city boards and was a former Boy Scout leader, according to an online obituary.

Even though he never met Scott Spence, Ponder called him "a tremendous individual. It's an absolute loss to the Steele community."

"If a man's sons are a measure of his greatness, then he was a great man indeed."

kwebster@semissourian.com

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