Woman sues BNSF Railway over child’s death
By Andrew Gaug St. Joseph News-Press
More than two years after a 10-year-old died when a vehicle she was traveling in was hit by a train, a lawsuit by her mother is advancing through the courts in Andrew County.
Shelly Gatewood, the mother of the victim, Shelby Wilson, claims that BNSF Railway Co.; Kevin A. Mitchell, a railroad master for the company; and Andrew County are all at fault for her child’s death. She is suing for damages in excess of $75,000.
Shelby was riding in the passenger’s seat of a Jeep Cherokee, driven by Susan Neill, and was headed to a float trip when the vehicle came to a railroad crossing near Andrew County Road 458 and North Street on Aug. 15, 2008, about 2:05 p.m.
Though court documents said the railroad has a crossing sign and crossbucks, a statement from Ms. Gatewood’s attorney, Bradford Kendall, claimed they were obscured by vegetation, allowing the collision to occur.
Stating the road taken by Ms. Neill was treacherous, Mr. Kendall alleged not enough warning was given in regard to the railroad tracks.
“There is an abrupt left-hand turn for vehicles approaching the track from the south, just before reaching the tracks,” the suit says. “(It) has a very steep incline before a motorist reaches the railroad track.”
In a case that now has two enormous files filled with documents, Mr. Kendall alleges the company, county and Mr. Mitchell ignored warnings of poor road conditions, lack of sufficient audible warnings, obstructed signs and poor visibility.
“(BNSF) and Roadmaster Mitchell should have placed notice of the factors that make this a complex, ultra-hazardous crossing as a result of at least four known prior accidents,” the plaintiff says. The accidents referenced range from June 1975 through March 1999.
In separate statements, BNSF Railway, Andrew County and Mr. Mitchell have denied all allegations.
“(BNSF’s fault is) denied or diminished due to application of comparative fault in that the (driver) failed to keep a careful lookout and had operated her vehicle at excessive speed,” court documents stated.
According to Rodney Massman, administrator of railroads for the Missouri Department of Transportation, the state provided funds for a railroad crossing improvement project at the spot where the incident occurred. The project was conducted by MoDOT and Andrew County in August 2007, and completed a year later.
Due to the railroad work being funded by federal money, the defendants argued on Thursday that all documents in regard to the project, including surveys and e-mails, should be made private by Section 409 of Title 23 of the U.S. Code. That states that certain documents involved with a federal safety project shall not be classified as evidence in a federal or state court proceeding.
Judge Randall Jackson, who is presiding in the case, will review the files and make a determination on the defendant’s claim.
The case is scheduled to go to trial in Andrew County on April 25.
Andrew Gaug can be reached at andrew,gaug@newspressnow.com
