Death on the Rails

T H E N O . 1 S T. L O U I S W E B S I T E A N D N E W S P A P E R

EARLY EDITION • SUNDAY • 12.9.2012 • $2.50

ERIK M. LUNSFORD • elunsford@post-dispatch.com

DEATH ON THE RAILS Hundreds die walking the tracks each year.

Railroads blame those killed, downplay their own role in prevention. ©2012, ST. LOUIS POST-DISPATCH • PART 1 OF 3

INSIDE

BY TODD C. FRANKEL • tfrankel@post-dispatch.com > 314-340-8110

• A deadly shortcut in Maplewood is still in use. A9

When 14-year-old Cam Vennard was fatally struck by an Amtrak train in Kirkwood in May, he was not the first person to die on the railroad tracks in this prosperous suburb. He wasn’t even the first from his middle school.

Kendal Krueger, 13, had been killed years earlier by a freight train just a bit farther up the line.

• A young mother is killed on a trestle in a state park. A10

ONLINE See a video and explore our map of accidents nationwide.

STLtoday.com/rails DAVID CARSON • dcarson@post-dispatch.com

COMING UP MONDAY Railroads resist efforts to study collisions.

TUESDAY Communities, railroads fight over fences.

Cam Vennard (left), 14, was walking along the tracks east of downtown Kirkwood when he was struck and killed by a train in May (top photo). Cam’s dad, Darryl Vennard (above) listens to son Ben Vennard play “While My Guitar Gently Weeps” in tribute to Cam. The family has been stunned by the community’s outpouring and by the railroads’ silence.

Fate of Baptist pastor accused of abuse is in hands of his flock Denomination has no hierarchy to address misconduct.

BY TIM TOWNSEND ttownsend@post-dispatch.com 314-340-8221

STOVER, MO. • Last Sunday, the Rev. Travis Smith paced First Baptist Church’s sanctuary, decorated for the holidays with poinsettias and a Christmas tree. He addressed his congregation, speaking to them about forgiveness.

Smith read verses from the Gospel of Matthew that follow the Lord’s Prayer: “For if you forgive other people when they sin against you, your heavenly Father will also forgive you,” he said.

Since Smith’s arrest in October on

sexual abuse and statutory rape charges, which follow similar allegations from 2010, forgiveness from his congregation has become critical to his survival as its pastor. It is this group of about 100 souls — not a bishop, nor a disciplinary committee nor national church leaders at a faraway headquarters — who will decide Smith’s future in the Southern Baptist Convention.

Unlike members of many denominations — such as Catholics, Lutherans, Methodists, Episcopalian and Presbyterians — Southern Baptists don’t conform to

And since Kendal’s death in 1996, at least 10 other pedestrians have died along this one set of railroad tracks in the St. Louis area alone. Among the deaths were a 10-year-old boy in Maplewood and a 22-year-old mother in Ballwin.

These tracks, owned by Union Pacific, are among the busiest in Missouri, carrying up to 60 trains a day, some running through dense suburbs at highway speeds. The tracks are mostly open and accessible. People shouldn’t be on them, but they often are. And the collisions keep occurring.

Kendal’s parents wanted the accidents to stop. A few weeks after their son died, the boy’s parents begged Union Pacific for help.

They had no thoughts of suing. They knew their son bore some responsibility. But they believed the railroad needed to do more to prevent these accidents, such as installing fences. Union Pacific said no. The boy’s parents were stunned.

“The railroads want to blame the trespasser,” Ken Krueger, Kendal’s father, says now, “but they take no blame themselves.”

See RAILS • Page A7

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12.9.2012 • Sunday • M 1

ST. LOUIS POST-DISPATCH • A7

DEATH ON THE RAILS

“The railroads want to blame the trespasser, but they take no blame themselves.”

— Ken Krueger, father of a victim

A national problem Mandatory reporting of the precise location of pedestrian railroad accidents began only in June 2011. Before that, railroads were required to report only the county. Regulators hope several more years of data like this map, showing injuries and deaths from June 2011 to June 2012, will help save lives.

Fatality Injury

St. Louis Top 10 counties with highest per capita railroad trespassing casualty rate 2007-2011 (rate x 1 million)

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

94.

Explore an interactive version of this map at STLtoday.com/rails Source: Federal Railroad Administration, Jeremy Kohler | Post-Dispatch

Cibola, N.M. 404.2 Rowan, N.C. 79.5 Merced, Calif.

78.2 Webb, Texas 67.9 Cabarrus, N.C. 67.4 Kanawha, W.Va. 62.2 Johnston, N.C. 59.2 San Luis Obispo, Calif. 51.9 Sangamon, Ill. 50.6 Pinal, Ariz.

50.6 St. Louis 10.0 U.S. avg. per capita 7.0

RAILS • from A1

Lack of detail hampers efforts to identify ‘hot spots.’

The Kruegers’ experience is not unusual. Railroad companies across the country at times refuse to take even small steps to deal with the problem of people walking on their tracks, a PostDispatch investigation found, based on more than 90 interviews and a review of thousands of pages of regulatory filings, court documents and industry publications. Some railroads defend their right to run trains with little concern for what may lie ahead. And for regulators, these types of accidents largely fall into a blind spot.

The result is that pedestrian railroad accidents are now the leading cause of death on the rails. More than 7,200 pedestrians have been fatally struck by trains in the United States since 1997.

An additional 6,400 have been injured. Each year on average about 500 are killed. In the first nine months of 2012, the number of pedestrian railroad deaths jumped 10 percent, while the number of all other railroad fatalities fell.

“Railroads don’t want any legal exposure, so they don’t accept any responsibility.”

— Harvey Levine, former VP, Association of American Railroads

Even more startling: Based on the miles driven each year, pedestrians are killed by freight and passenger trains at many times the rate they are killed by motor vehicles.

Despite this, railroads have objected to efforts by regulators to learn more about the collisions. They have admitted to ignoring obvious signs of people walking on their rails. They have at times failed to brake or even slow down significantly when they do spot people in a train’s path. At the same time, they take credit for safety education efforts that have seen funding and staffing slashed.

“Railroads don’t want any legal exposure, so they don’t accept any responsibility,” said Harvey Levine, a former vice president of the Association of American Railroads, who toward the end of his career with the trade group became alarmed by the industry’s safety record.

No one doubts that the victims bear some culpability for these accidents.

People shouldn’t be on the tracks.

Studies estimate 20 percent to 30 percent of the deaths are believed to be suicides. And people walking on the rails are sometimes distracted. Cam, for example, might have been listening to music on his earphones, reducing the chances he heard the train’s horn.

Just last month, a 19-year-old St. Louis woman was among three Earlham College students struck by a freight train as they walked on the tracks in Richmond, Ind. One student, from Burlingame, Calif., was killed im-

David Carson • dcarson@post-dispatch.com

An Amtrak train rolls into the Kirkwood station on its run to Kansas City in June. The station manager says he frequently shoos people off the tracks.

mediately. Lenore Edwards of St. Louis died two weeks later.

To the railroads, the solution is simple.

“The incidents would have been avoided if the persons were not trespassing on railroad property,” Union Pacific spokesman Mark Davis said.

But that does not mean the deaths need to happen.

The railroads’ legal responsibility for deaths and injuries is limited by laws and regulations that regard almost anyone on the tracks as a criminal trespasser — whether they are taking a shortcut or walking to school, whether they are toddlers or drunken middleage men, whether an isolated case or part of a trend.

Keeping people off the tracks is difficult, said David Clarke, director of the University of Tennessee’s Transportation Research Center, who has served as an expert witness in railroad accident cases.

“But honestly, the railroads don’t seem to make a whole lot of effort to do it,” Clarke said.

One tactic, say experts and regula-

tors, would be focusing resources on the “hot spots” where people most frequently cross. But finding those locations has been hampered by lax incident reporting standards.

For years, railroads told federal regulators only the county where trespassing casualties occurred. So regulators had no way of knowing that Cam and Kendal were killed in the same town, or that a single railroad line was the scene of repeated fatalities. And when regulators recently pushed to tighten reporting rules, railroads complained.

State and federal officials mostly lack the power to require safety improvements to address the problem of people walking on the tracks. In fact, many states have stricter rules on keeping livestock off the rails than people, leading to the odd scenario where a railroad could be liable for a fatality if it’s a calf, but not a child.

“It’s stunning how railroad companies turn their backs on these cases,” said Eugene Bolin, a lawyer in Edmonds, Wash., who has represented children hit by trains.

“The incidents would have been avoided if the persons were not trespassing on railroad property.”

For decades, the leading killer on the railroad involved cars and trucks at grade crossings. But no more. Following a public outcry in the early 1970s, hundreds of millions of taxpayer dollars were spent to fortify crossings with flashing lights and automatic gates.

Drivers were targeted with education campaigns. Crossing deaths today have plummeted to a fraction of what they once were, and since 1997 trespassing deaths have held the lead.

But railroad pedestrian fatalities don’t attract the same attention as crossing accidents or derailed locomotives. There are no images of crumpled

— Mark Davis, Union Pacific

Deaths in ones and twos

pickups or flipped rail cars. The victims are “trespassers,” a legal term that carries a whiff of malicious intent. Yet, federal regulators acknowledge many trespassers are people just out for a walk.

These deaths come in ones and twos, slipping below the radar of outrage.

“There’s a whole bunch of private tragedies going on,” said Ian Savage, a railroad economist at Northwestern University.

“There’s a whole bunch of private tragedies going on.”

— Ian Savage, Northwestern University

The focus on vehicle crossings has come at a cost.

Consider what has happened in Kirkwood, a place whose history is intertwined with trains. The town was named for a railroad engineer. Two major rail lines cut through it. When Amtrak threatened to close the stone train station in the heart of downtown, local officials kept it open with volunteers.

Kirkwood has nine vehicle railroad crossings. Most have been guarded by lights and gates for decades. Then the town began making its crossings even more secure so it could qualify for a “whistle ban,” allowing trains to skip blowing their horns at each intersection.

Those safety improvements seemed See RAILS • Page A8

A8 • ST. LOUIS POST-DISPATCH

M 1 • Sunday • 12.9.2012

DEATH ON THE RAILS

“Trespassing is a railroad issue. How they keep people off that property is up to them.”

— Eric Curtit, Missouri Department of Transportation

David Carson • dcarson@post-dispatch.com

Austin Huster, 16, hops the tracks in Kirkwood while on his way to a memorial concert July 12 honoring Cam Vennard, who was killed while walking on the tracks in May. Pedestrians are a common sight along the railroad tracks in Kirkwood.

RAILS • from A7

Trains operate with ‘inherent right’ to go posted speed. to have worked. No motorist has died at a railroad crossing in Kirkwood since at least 1975, according to federal records.

But away from the fortified crossings, Kendal was killed. And Cam. Before those boys, an 82-year-old woman was fatally struck by a BNSF train when her shopping cart got stuck on the rails in 1993.

Two weeks after Cam died, a young girl came so close to being struck by a Union Pacific freight train in downtown Kirkwood that the train made an emergency stop.

“I go out there all the time and warn people off the track,” Amtrak station manager Bill Burckhalter said.

He’s not seeing hobos and the homeless. Burckhalter finds wedding photographers posing groups on the rails.

He sees grandparents showing children how to place coins on the tracks. He sees people taking shortcuts.

“I don’t think people realize the railroad track is private property,” he said.

Yet, the issue of trespassing almost never comes up at the quarterly safety meetings attended by representatives from railroads and state and local governments, Burckhalter said.

Eric Curtit, railroad administrator for the Missouri Department of Transportation, said he can’t remember the last time the safety group discussed people walking over the tracks. His agency enforces state laws on railroad operation and safety. It decides which crossings get lights and gates. But that’s it. The agency doesn’t take action on trespassing issues, Curtit said.

“Trespassing is a railroad issue,” he said. “How they keep people off that property is up to them.”

Laurie Skrivan • lskrivan@post-dispatch.com

Surrounded by friends, Michael Schuller, 14, places a bouquet alongside the railroad tracks on May 31, the day after an Amtrak train struck and killed Cam Vennard as he walked into downtown Kirkwood.

“You can’t get hit by a train in Starbucks.”

Blame comes early Only federal regulators have the authority to fully investigate trespassing injuries and deaths. Yet they almost never do. The Federal Railroad Administration views trespassing cases as “local law enforcement issues,” said spokesman Michael England.

The federal agency is not going to get involved in local issues “especially when the cause of the incident is obvious (You can’t get hit by a train in Starbucks),” England said in an email to the Post-Dispatch.

Local police are limited in what they can do to investigate. Trains carry black-box event recorders, like those on airplanes, which are essential to determining when a horn was blown and how fast the train was traveling. Many locomotives also are equipped with video recorders, like those in police cruisers. But only federal officials have access to that evidence. Local police sometimes even turn to corporate railroad police for help with investigations.

From the start, the blame falls on the trespasser.

The word of the railroad carries so much weight in these cases that after a 2-year-old boy was killed by a Kansas City Southern freight train in 2003 when he wandered onto a straight stretch of track outside tiny Drexel, Mo., authorities never noted incon-

— Michael England, Federal Railroad Administration

Railroad deaths

RAILROAD DEATHS

Millions have been spent improving Millions have been spent improving safety safety at railroad crossings.

The number at railroad crossings.

The number of of trespassing deaths has surpassed trespassing deaths has surpassed crossing crossing deaths since 1997. deaths since 1997.

Trespassing deaths

Crossing deaths

800

410

600 400 200 0 ’81

266 ’86

’91

’96

’01

’06

’11

SOURCE: SOURCE:Federal FederalRailroad RailroadAdminstration Administration—— U.S. railroad crossing and trespassing deaths | Post-Dispatch U.S. railroad crossing and trespassing deaths | Post-Dispatch

sistencies in what the railroad claimed took place. The locomotive engineer initially said he “saw something ahead and I hit the brakes,” but couldn’t stop in time, according to the Missouri Highway Patrol report.

The police report noted the locomotive’s horn and headlights were working. But without access to the train’s event recorder and video camera, police had no way of knowing if the horn was sounded or if the brakes were applied at an appropriate distance — or what really was on the tracks.

The boy, Joseph Howell, lived with his family next to the rail line. His mother, Jodi Howell, told police she thought the toddler, one of five children, had gone with his father. She estimated she last saw her son five minutes before hearing the shriek of the train’s brakes. The Bates County prosecutor charged her with felony child welfare endangerment.

Kansas City Southern reported a different scenario to federal regulators.

The railroad claimed the engineer blew the horn to move a pack of dogs. The railroad wrote in a brief account to the federal agency: “When dogs moved, a small child was in between tracks, could not be seen because of dogs. Could not stop train. Child was struck by lead unit and thrown clear of.”

The Bates County prosecutor’s office said recently it never heard that story.

Neither did the highway patrol. Kansas City Southern said it would not discuss

specific incidents.

“I’ve never heard that,” Jodi Howell’s criminal attorney, Joe Hamilton, said recently. “What were they, Saint Bernards? That’s not believable to me.

That sounds like they were trying to cover their ass.”

Without that information, all Hamilton could do was get the boy’s mother a plea deal. She avoided jail time. But no one investigated the actions of the railroad.

No slowing down Track speed limits, which are set by the Federal Railroad Administration, do not take into account whether the rails run past neighborhoods or schools. State and local officials can try to go beyond the federal rules and impose slower speeds in dangerous areas, but they must overcome “an extremely high legal standard.” The rule book used by most railroads to guide train operations also says nothing about going slower in places with known trespassing risks.

Sometimes, even what is happening directly on the tracks doesn’t seem to matter.

After two young girls were killed by an Amtrak train on a trestle in Kent, Wash., an Amtrak supervisor testified in 2003 that trains operate with an “inherent right” to go the posted track speed. In that case, the train’s engineer had been warned five minutes before See RAILS • Page A9

12.9.2012 • Sunday • M 1

ST. LOUIS POST-DISPATCH • A9

DEATH ON THE RAILS

In Maplewood, a shortcut remains ‘How many people does it take to get killed before they take action?’

By Todd C. Frankel tfrankel@post-dispatch.com 314-340-8110

MAPLEWOOD • Jesse Biggs was 10.

He lived on Walter Avenue with his grandmother. One day in August 2000, he left home on his silver Mongoose bicycle. He carried $10 in the pocket of his jean shorts. He was headed to Kmart for Pokémon cards.

But first he needed to cross the railroad tracks.

Jesse had to make a life-or-death de- Jesse Biggs cision — one that people in this neighborhood still make every day, 12 years later.

He could go under the tracks through a short tunnel that carries Big Bend Boulevard. But the sidewalk there is narrow, the vehicle traffic close and fast.

Or he could cross over the double set of tracks. It is a shorter and easier route, but against the law.

On that summer day in 2000, a massive yellow Union Pacific locomotive idled to Jesse’s right. Trains often sat there for hours. Jesse saw them enough to know they were stocked with water bottles for the crew. Sometimes he asked for one.

Inside the locomotive cab, an engineer and conductor saw Jesse walk toward their idling train with his bike, according to court depositions. The conductor thought Jesse wanted water.

He reached down to grab a bottle.

But Jesse wanted to cross over. He lifted his silver bike onto his shoulder and began to walk directly in front of the locomotive, over the first of two sets of tracks.

The train crew was alarmed. An Amtrak train was scheduled to pass on the other track at any moment, its path hidden by the sitting freight train.

“Where’s Amtrak?” asked the conductor.

The engineer heard a faint rumbling.

“He’s here,” he replied in horror.

Both men blew the train horn again and again as Jesse stood in front of the locomotive. The blasting shriek seemed to scare him. Jesse rushed across the tracks, just as the Amtrak train flew past.

Jesse was killed instantly.

“It happened snap, snap, snap like that,” the conductor recalled in a deposition for a wrongful death lawsuit filed

by Jesse’s family.

DAVID CARSON • dcarson@post-dispatch.com

An illegal crossing is clearly marked by a path over the train tracks in Maplewood near the site of Jesse Biggs’ death. Scott Hagen, 25, says he takes the shortcut over the tracks because it’s faster than walking around to the underpass.

The Amtrak engineer said he had seen pedestrians cross the tracks at this spot for more than a decade. The Union Pacific crew had seen it too. The freight train’s engineer said he had noticed the dirt paths leading across the rails.

“What did you assume made those paths?” he was asked by Marc Wallis, an attorney for Jesse’s family.

“I don’t assume anything. I don’t really pay much attention to them,” the engineer replied.

“OK,” Wallis said. “They don’t mean much to you?”

“No.” “They still don’t mean much to you?”

The answer, again, was no.

Today, the paths are still there.

After Jesse’s death, Union Pacific installed several “No Trespassing” signs. Some dense brush grows along the tracks in what appears to be an attempt at a natural barrier. But people still cross with regularity.

One day last summer, five people stood feet away from where Jesse died.

A white “No Trespassing” sign was planted nearby. They were waiting for a freight train to clear the tracks. One man pulled a rolling suitcase with an

airline tag, as if he had just arrived from the airport. A 50-year-old woman was coming home from her job as a hotel housekeeper. She had walked over from a MetroLink station. Her apartment sat just on the other side of the tracks.

She said taking the underpass took twice as long and felt more dangerous than crossing the tracks. Dead birds sometimes littered the sidewalk. On this day, it was blocked by a plastic car fender.

“I ain’t trying to commit suicide,” said the woman, declining to provide her name. She knew what she was doing was wrong. But crossing the tracks seemed the best choice, given her options.

“We,” she said, gesturing at the others, “take our chances.”

The train passed. She looked both ways. And crossed.

Esteban Prieto could have watched her crossing from the window of his art studio about 100 feet away. Over the years, he’s seen the steady, unabated flow of pedestrians across the rails.

He’s seen mothers pushing baby strollers. He’s seen children. He’s seen the elderly. He once saw a blind man, com-

plete with walking stick.

He also saw Jesse die.

Prieto is surprised by how little has changed since then. The railroad put up the signs and planted the thorn bushes.

But the pedestrian traffic hasn’t subsided. Unmistakable dirt paths lead to the rails. The underpass still feels unsafe, he said. He rarely sees anyone policing the rails.

He thinks another accident will happen.

“How many people does it take to get killed before they take action?” Prieto asked.

Sgt. Michael Martin helped investigate Jesse’s death. He agreed that trespassing along this spot was common.

His department patrols the rail lines when it can, but Maplewood officers have other priorities, he said. Maybe a fence would help.

The problem is the tracks run past a large apartment complex and houses on one side, with more houses, shops and a MetroLink station on the other.

The nearest crossing is almost a quarter mile away. People just walk over the rails instead. “They come and go all the time,” the sergeant said.

Q. “Is it true that an Amtrak engineer is not required to prevent a fatality with respect to a pedestrian or trespasser even though it’s possible for them to do so?”

A. “The way the book is written there is not a requirement.”

—Timothy Branson, Amtrak

RAILS • from A8

Father: After Cam Vennard’s death, silence from railroads. the crash by a passing freight train that two girls were playing up ahead.

As the Amtrak train bore down, the girls, one of whom had cerebral palsy, were running to get off the trestle in time. With a track limit of 80 mph, the Amtrak train slowed from 79 to 65 mph as it neared the span over the Green River, according to court records. The emergency brakes were never applied.

Rachel Marturello, 11, and Zandra Lafley, 13, ended up dying a few feet short of the trestle’s end — and safety.

“Is it true,” an attorney for the two girls’ families asked during a deposition, “that an Amtrak engineer is not required to prevent a fatality with respect to a pedestrian or trespasser even though it’s possible for them to do so?”

“The way the book is written there is not a requirement,” replied Timothy Branson, an Amtrak regional superintendent.

Another Amtrak regional manager testified that slowing or stopping the train for every pedestrian on the rails was impossible.

“I think if an engineer slowed down or stopped every time he thought something might happen,” Kurt Laird said, “we wouldn’t get the train from point A to point B.”

Asked recently about the Kent case, an Amtrak spokesman said all Amtrak engineers operate in compliance with federal regulations.

And it’s not just Amtrak. A Union Pacific engineer testified he never touched the locomotive’s brakes before colliding with a mother and daughter walking on the tracks in El Paso, Texas, in 2002. He down-shifted the throttle. He blew the horn. He said he always expected Flora Torres, 40, and her daughter Haide, 8, to get out of the way.

He and the conductor saw the pair on the rails from an estimated 1,700 feet away, far enough to stop the train before the collision, according to court testimony. But they testified they could not tell for certain they were people because the mother and daughter carried colorful parasols to block the summer sun.

The engineer was asked in court if he was disciplined by Union Pacific for failing to use the brakes. No, the engineer replied.

Did he violate any railroad rules? No. Davis, the Union Pacific spokesman, told the Post-Dispatch that all train crews are taught to use brakes “as the circumstances warrant as each situation is unique.”

Too late The day Cam Vennard died, his dad was at the grocery, his mom on a walk. Cam had just started summer break. It was a sunny Wednesday afternoon. He left the house to meet friends at a deli in downtown Kirkwood. He took a shortcut along the tracks that is popular with children and teens. He had taken it many times. It cut his trip in half.

Passenger trains like Amtrak’s are relatively quiet, without a freight train’s weighty rumble, a factor that came up when Cam’s death was discussed by St. Louis County’s child fatality review board.

According to the police report, the Amtrak train was going 46 mph. The train engineer would later tell police he blew the horn when he spotted the boy.

When the train was only about 100 feet away, the engineer finally slammed the emergency brakes. Cam spun around seconds before the collision.

Cam, 14, wasn’t carrying any identification. Authorities didn’t know his name. But he had a cellphone. A police officer used it to find a number listed as “home.” The officer used that to find an address.

Two officers then drove to the house on Lennore Avenue. Cam’s father was

working in the yard. He was shown the phone. The father wasn’t sure if it belonged to any of his three sons.

Standing with police, he dialed Cam’s number.

The phone in the officer’s hand began to vibrate.

Several months after his son’s death, Darryl Vennard remained stunned by two things: the tremendous support his family received from the community and the complete silence from the railroads.

He can’t believe that trains are allowed to travel up to 50 mph through his neighborhood, next to residential streets with 25 mph speed limits. He never had given much thought to the tracks. Now it felt like the only thing on his mind. He wanted the railroads to take some measure of responsibility.

First it was Kendal. Then it was Cam. The father wants it to end there. He doesn’t want another parent to suffer like this.

“They’ve got to do something,” he said. “It’s going to happen again.”

He was right. Just hours after Cam died, another teen was killed by a train, this time in Maryland.

Coming Monday: Railroads have fought efforts to study where collisions occur most frequently.

ABOUT thIS series Post-Dispatch reporter Todd C. Frankel began looking into railroad pedestrian deaths in June, shortly after a fatal collision in Kirkwood. He examined hundreds of fatalities across the country.

He conducted more than 90 interviews for these articles, talking with victims’ families, railroad officials and workers, regulators, public officials and police, and reviewed thousands of pages of court documents, regulatory filings and industry publications.

Todd C. Frankel is an enterprise reporter whose work has won National Headliners, American Society of News Editors and Society of Professional Journalists awards.

David Carson is a photojournalist whose work has won National Headliner, Emmy and National Press Photographers Association awards.

A10 • ST. LOUIS POST-DISPATCH

M 1 • SUNDAY • 12.9.2012

DEATH ON THE RAILS

PHOTOS BY DAVID CARSON • dcarson@post-dispatch.com

Michael Nurmela breaks down as he recounts the day his stepdaughter, Jessica Blair, was struck and killed by a train in 1999. At right is his wife, Blair’s mother, Sherry Nurmela.

Blair’s son, Dillon, 4, was severely injured when his mother dropped him from the trestle to keep him from being hit. Jessica’s picture is displayed on the mantel.

Despite death, a refusal to whistle Train came around curve, killing young mother and injuring her son on trestle.

BY TODD C. FRANKEL tfrankel@post-dispatch.com 314-340-8110

Jessica and Dillon Blair

In Castlewood State Park, two hikers went under the cars of a stopped train on the trestle one day in November. They would not give their names. The trestle was the site of the accident that killed Jessica Blair.

straight to the span, past a single “No Trespassing” sign covered by graffiti.

A newer “No Trespassing” message is stenciled onto the metal rails.

In March 1999, Jessica Blair, 22, and her son Dillon, 4, stood on the trestle, tossing stones into the creek below. A man sat on a trestle support nearby.

The witness and rail experts described in depositions what happened.

An Amtrak train going at least 45 mph approached from around a tight bend toward the double-tracked trestle. Blair and her son stood about 60 feet from the nearest end. No time to run. The engineer blew his horn when he saw them. Seconds passed. Blair appeared to hold Dillon out of the way of the oncoming train. The train collided

with her. The boy fell into the creek.

The Amtrak engineer did not hit the brakes until after the collision, testifying that he had thought all along the pair would get out of the way. Blair was killed. Dillon was seriously injured.

Even before the accident, the park superintendent had noted that the tracks presented a hazard to visitors.

Afterward, Blair’s parents asked a state railroad official to suggest ways to make the railroad tracks safer. The state lacked the authority to force Union Pacific to take action, but it recommended putting up “No Trespassing” signs and requiring trains to blow their horns as they approached the trestle, at least temporarily. The limited sight distances were alarming.

Union Pacific put up the signs. But it balked at blowing the horn.

Today, at the house of Blair’s mother and stepfather in Valley Park, a massive picture of her hangs in the living room. A table contains a scrapbook and mementos of her life. Her mother and stepfather raised Dillon. He’s 17 now and doing well.

Blair’s stepfather, Michael Nurmela, is still angry about the accident. He’s angry at his stepdaughter for being out on the trestle that day. And he’s angry at the railroad for doing so little to prevent it from happening again.

“The attitude is,” he said, “ ‘We’re not interested in doing anything. We don’t have to. Why should we? No law says we have to.’ ” JAN. 4, 2008

AUG. 21, 1999

TRAGIC STRETCH FEB. 11, 2011

d

Meramec River

2

9

Lone Elk Park

270

OCT. 15, 2010

MAY 30, 2012 141

JAN. 2, 2012

Clarence L. McIlvaine, 46 Valley Park, 1/2 mile west of Highway 141, by Union Pacific train.

Ruled suicide.

Cam Vennard, 14 Kirkwood, east of Leffingwell Avenue crossing,

by Amtrak train.

Ruled accident.

db

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Michael Palumbo, 29 Webster Groves, near 100 block of North Elm Avenue,

by Union Pacific train.

Ruled suicide.

ER

RIV SS

IP

PI n so

Lin

55

SI

Chippewa

GROVES

at W

44

Tower Grove Park

Adams

VALLEY PARK

Castlewood State Park

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Kirkwood train station

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100

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70

ST. LOUIS

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Ballas

Jessica Blair, 22 Castlewood State Park, trestle over Kiefer Creek,

by Amtrak train. Blair’s 4-year-old son Dillon was severely injured.

Ruled accident.

64

Forest Park

MAPLEWOOD

Kirkwood

MARCH 18, 1999

170

61

Geyer

Kendal Krueger, 13 Kirkwood, west of South Ballas Road overpass,

by Union Pacific train.

Ruled accident.

Big Ben

JUNE 9, 1996

ITS

Kyle Atkins, 30 Webster Groves, near North Elm and North Gore avenues, by Amtrak train.

Ruled suicide.

CITY LIM

At least 10 pedestrians have died on this single section of Union Pacific tracks since 1996. The tracks, among the busiest in the state, pass through downtown St. Louis and dense suburbs as they head west.

Fraydoun Abid, 74 St. Louis, near Sulphur Avenue crossing, by Amtrak train.

Ruled accident.

Bryan Murphy, 17 Maplewood, trestle in Deer Creek Park,

by Union Pacific train.

Ruled accident.

Kiingshig h

BALLWIN • The solution sounded simple: All trains should blow their horns before crossing the railroad trestle above Kiefer Creek in Castlewood State Park.

The horn would serve as a warning, perhaps preventing a tragedy like one in 1999, when a train killed a woman and severely injured her 4-year-old son as they stood on the span.

A state regulator thought the warning whistle was a good idea. The park superintendent agreed. So did some safety experts. But Union Pacific, which owns the track, objected.

Federal rules don’t require the railroad to whistle before crossing a trestle. And Union Pacific was not going to start here.

“The railroad attitude was bizarre to me,” recalled David Clarke, director of the University of Tennessee’s Transportation Research Center. He examined the accident as part of a lawsuit brought by the grandparents of the young boy who survived.

Blowing the horn was a small thing that could potentially save lives, Clarke said.

Union Pacific argued that horns are only for designated grade crossings or when dangers are actually spotted on the tracks.

In Castlewood, trains approach the trestle through a path obscured by dense woods along a curving rail bed in a state park popular with hikers, bikers and swimmers.

Today, the trestle remains easily accessible. A well-trodden dirt path leads

MI

S

AUG. 19, 2000

JULY 16, 2001

Jesse Biggs, 10 Maplewood, near Big Bend underpass,

by Amtrak train.

Ruled accident.

Timothy A. Grimes, 46 St. Louis, near Kingshighway and Manchester Avenue,

by Amtrak train.

Ruled accident.

Compiled using data from Federal Railroad Administration, National Response Center, medical examiner's offices and media reports.

T H E N O . 1 S T. L O U I S W E B S I T E A N D N E W S P A P E R

MONDAY • 12.10.2012 • $1.50

DEATH ON THE RAILS: PART 2

A DEADLY STRETCH Railroads fought efforts to identify problem spots for pedestrians.

In Maryland, four killed in three years in one residential area raises questions.

DAVID CARSON • dcarson@post-dispatch.com

Walter Gaffney holds a picture of his daughter Mary Gaffney, 17, last month along the set of tracks where she was struck and killed by a train in Riverdale Park, Md. Mary and two other people were killed by trains the same day as a 14-year-old in Kirkwood, Mo., was fatally struck.

© 2012 ST. LOUIS POST-DISPATCH

INSIDE

BY TODD C. FRANKEL • tfrankel@post-dispatch.com > 314-340-8110

Program to promote safety around the tracks has been slashed. A9

RIVERDALE PARK, MD. • On May 30, 2012, four people died

walking the nation’s railroad tracks. § It was a typical day. § The first death came in the Chicago suburbs. A man, 60, was hit by a train in an apparent suicide. § Then a train hit a man in San Mateo, Calif. § That afternoon, a 14-year-old boy was struck by a train in Kirkwood, Mo. § Hours later, a freight train collided with Mary Gaffney, 17, in the Maryland suburbs outside Washington.

COMING UP TOMORROW Families, communities and railroads fight over fences.

What happened in the Maryland case illustrates the problems nationwide with investigating railroad trespassing deaths and how a lack of historical data allows potential patterns to disappear unseen. The ability to find trespassing “hot spots” for focusing safety efforts has been crippled by lax reporting standards and by the railroads’ frequent refusal to help regulators study the collisions, the Post-Dispatch found.

Since that night in May, Mary’s father, Walter Gaffney, has tried piecing together what happened to her.

It was nearly midnight as Mary walked along the tracks in Riverdale Park, Md. She was using the rails as a shortcut to reach her boyfriend, who was walking See RAILS • Page A8

SOMETHING FOR

Children’s Fund inquiry said to center on check for $1,700

EVERYONE

Ousted director says misunderstanding prompted action.

“I would never do anything to jeopardize the wellbeing of our community and the fund.”

FBI inquiry questioning whether Tansey was accepting favors from a vendor that planned to bid on a $1 million contract with the Children’s Service Fund.

Tansey said the investigation had run its course with no finding of wrongdoing. A spokeswoman with the St. Louis Division of the FBI said the agency did not confirm or deny investigations and declined to comment further. St. Louis County Councilman Greg Quinn, who first publicly acknowledged the federal inquiry, said he had heard of no new developments.

“I have only stood for enhancing our county and enhancing our kids,” Tansey said. “ I would

— Kate Tansey

See FUND • Page A3

BY NANCY CAMBRIA nancy.cambria@post-dispatch.com 314-340-8238

RAMS WIN THIRD IN ROW

The former head of a multimillion dollar taxpayer fund to help St. Louis County children says a $1,700 personal check to her from a consultant is at the heart of an FBI investigation and led to her firing.

In her first interview since she was ousted from the post in October, Kate Tansey, former executive director of the St. Louis County Children’s Service Fund, told the Post-Dispatch that the nature of the payment was misunderstood.

The check and allegations of conflicts of interest appear to have been enough to trigger an

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A8 • ST. LOUIS POST-DISPATCH

M 1 • Monday • 12.10.2012

DEATH ON THE RAILS

“Amtrak is concerned that the accumulation of such data could potentially lead to the improper assumption that railroads have a duty toward trespassers not otherwise recognized by law.”

— Roy Deitchman, Amtrak

photos by David Carson • dcarson@post-dispatch.com

A CSX freight train rolls along the tracks in Riverdale Park, Md., near the spot where Bradford Bacon, 41, was killed by a train in March 2011. Police say it was a suicide, but the family disputes that, pointing to discrepancies in the records.

RAILS • from A1

Railroads fought regulators over reports on trespassing. down the tracks from the other direction. They planned to meet halfway.

Walter Gaffney said he was told by a police detective that the CSX train slowed to 35 mph before striking his daughter from behind. Once rescue crews removed his daughter’s body from the tracks, the CSX train departed — before county police could interview the train crew. Police were forced to call CSX so they could talk to the engineer.

That’s when police discovered the locomotive’s video recorder was not working.

Gaffney said he was told his daughter was wearing earphones when she was hit and that she was using some kind of LED light to guide her. Those two things, police told him, might have delayed her reaction to the train.

A Prince Georges County Police spokesman declined to comment on the accident to the Post-Dispatch.

Gaffney was left with many questions.

Why did the train leave the station if the cameras were not working? Why did the train leave the scene? Was everything possible done to avoid the accident?

CSX spokesman Gary Sease told the Post-Dispatch that the emergency brakes were applied. The train left the scene after the crew talked with a local police officer, even though county police handle death investigations. The train crew later spoke with a county homicide detective, Sease said.

The train’s video recorder was, indeed, not working, Sease said. “These are infrequent but occasional problems with these electronic devices, but overall reliability is very good,” he said.

But police never accessed the train’s black box, which Sease said was operational that night. And Gaffney can’t get at it unless he sues. He has gone back to the accident scene several times. He was surprised by how open the tracks are — no fence, no obstructions, no warning signs — despite bisecting a quiet, dense residential area of modest homes.

He said he was not satisfied with the answer that Mary was a trespasser and that was the end of the inquiry.

“Last I heard,” he said, “trespassing was not a capital offense.”

Four deaths What Gaffney didn’t know was that his daughter was not the first death along the tracks here. In less than three years, three other people had been killed on the same tracks within a mile and a half of where his daughter died.

And Mary Gaffney was not the last casualty. Three and a half months later, on Sept. 15, a CSX train injured a man in the same area.

The first of the three other deaths came in March 2011, within view of where Mary Gaffney was hit. Bradford Bacon, 41, was hit by a train near a clear path across the tracks. The gravel shortcut cuts between a row of trees, just off a narrow residential street studded with speed bumps. His death was ruled a suicide. Police said he had made no attempt to avoid the CSX

CSX railroad police warn a man crossing the tracks with his young child in Hyattsville, Md., about trespassing where other pedestrians have been hit by trains. The officer, there on an unrelated matter, says he feels compelled to stop people crossing illegally when he sees them.

“Last I heard, trespassing was not a capital offense.”

— Walter Gaffney, father of victim

freight train. But his family doesn’t believe that.

His sister Jessica Bacon said her brother lived by the tracks and often crossed the rail lines to get to his girlfriend’s house. That’s where he was headed. His sister spoke to him on the phone the night he died. He didn’t sound depressed. He had just undergone extensive dental work. He didn’t leave a note.

She pointed out that CSX had reported to the Federal Railroad Administration that her brother was lying on the tracks. But a county police spokesman said the train’s video showed the victim standing with both arms raised.

(CSX said its files also show Bacon was standing. It could not explain the discrepancy with what it told regulators.)

To Jessica Bacon, this supports her family’s belief that it was an accident.

“This was not on purpose,” she said.

Two weeks after Bradford Bacon was hit and just around a bend in the tracks, a MARC commuter train on the CSX tracks fatally struck an 80-year-old woman.

Barbara Savoy, 61, told police she was helping her mother, Lillian Marie Savoy, over the last rail, on their way

to buy a newspaper, when the collision occurred. The Washington-bound train was going at least 60 mph, according to the police report.

In October 2009 and just 800 feet down the line, a CSX train struck a man, 29, as he crossed the tracks holding aloft his bicycle. He was late for work and gambled that he could beat the train, said Sgt. Chris Purvis of the Hyattsville, Md., police department.

This was not an isolated case of someone crossing the rails, Purvis said.

“Walking the tracks, it’s common.”

Trains can travel up to 70 mph on these CSX tracks, near busy streets, between neighborhoods. Among some people living nearby, the tracks have gained a reputation as a problem.

These accidents are nothing new, said Bruce Hellington, who lives in the area and witnessed a train-pedestrian collision along this stretch. It’s “always been a challenge to keep people from being hit here.”

Andrew Farrington, a friend of Bradford Bacon who grew up and still lives near the tracks, said accessing the tracks had always been easy. “The tracks were like a highway for walking,” he said.

Little information For years, the Federal Railroad Administration has been examining the railroad trespassing problem without enough information.

A few years ago, when the agency tried to get a better sense of who was walking on the tracks — by looking at trespassing cases that didn’t end in a casualty — regulators asked the rail-

roads for help. They wanted the railroads’ internal trespassing reports. The railroads refused.

The agency recently was forced to concede defeat, noting that it “failed to garner the necessary support from the rail industry to conduct the study.”

Then there was the issue of where the casualties occurred.

For years, the agency required railroads to report only the county of a trespassing death or injury. Not the city. Not the closest milepost on the railroad system. Having so few details made it hard to identify hot spots for trespassing, said Ron Ries, director of the agency’s Highway-Rail Grade Crossing Safety and Trespass Prevention Division.

“Certainly with it being on the county level it made it much more difficult, given the size of some counties and multiple rail lines,” said Ries.

To regulators, the deaths near the site of Mary Gaffney’s accident appeared to share only the same county.

The agency took its first step to change things in 2003, when it added room for longitude and latitude coordinates on the casualty forms that railroads are required to submit. But filling out those spaces was voluntary, and the railroads almost never bothered.

In 2008, the agency tried again. It proposed mandatory reporting of GPS coordinates — a mapping technique familiar to anyone with a Garmin in the car or a smart phone.

The railroads fought back.

In December 2008, a public hearing was held in Washington on a host of See RAILS • Page A9

12.10.2012 • MONDAY • M 1

ST. LOUIS POST-DISPATCH • A9

DEATH ON THE RAILS

Safety group shrinks, danger stays Railroads say Operation Lifesaver fights trespassing, but support has been cut.

BY TODD C. FRANKEL tfrankel@post-dispatch.com 314-340-8110

WENTZVILLE • Not far from where

DAVID CARSON • dcarson@post-dispatch.com

Norfolk Southern conductor Doug Lanier keeps an eye out the front window of a train as it crosses a street in O’Fallon, Mo., in July. The railroad was providing training for local police officers.

61

nh s au

Mitchell Maserang killed July 1

e etk Lu

Meyer

Main

Sunset

Rick Mooney stood, a teenage boy had been fatally struck by a Norfolk Southern locomotive.

That’s why Mooney was out here on this sweltering day in late August, a few weeks after the accident. He was conducting a safety blitz. He and a handful of others were stopping motorists to give them green-and-white brochures listing safety tips for drivers at railroad crossings, plus a coupon for free ice cream at Chick-Fil-A. Mooney is the Missouri coordinator for Operation Lifesaver, the nonprofit railroad safety group with chapters across the country. The group is hailed by railroads and regulators for its efforts to educate the public about staying safe around trains.

Railroads point to the group — and events such as this one in Wentzville — as proof that they are working to prevent accidents on the tracks.

But Operation Lifesaver also has been criticized for its board members’ deep industry ties and how, as a Louisiana appeals court noted in 2000, the group “appears skewed in favor of railroads.” The group also has been faulted for not focusing more on pedestrian railroad accidents.

And something else has been quietly happening, too: The railroad industry, even as it touts Operation Lifesaver, has reduced its support of the group’s efforts, documents show.

In the most apparent sign of this, railroads are providing fewer workers to help spread the group’s safety message to schoolchildren and community groups.

Mooney has seen the changes in Missouri.

He joined Operation Lifesaver in 1978, just a few years after the group was launched in Idaho with the help of Union Pacific.

When Mooney was Missouri’s top railroad regulator, he had eight state employees who worked as Operation Lifesaver presenters. Railroads provided employees to work full time with the group.

“Nobody is doing that anymore,” Mooney said.

The state employs just one certified presenter. And the transportation department decided it didn’t need an inhouse Operation Lifesaver coordinator after Mooney retired in 2000.

Mooney believes in the Operation Lifesaver message. He doesn’t want to

70

Wentzville Post-Dispatch

seeDETAIL it fade. So he has continued his dutiesAREA as a part-time consultant.

The consequences ofSt. all these Louis changes have been MO. clear. In the 1980s, ILL. Operation Lifesaver conducted about 2,800 safety presentations each year in Post-Dispatch Missouri, Mooney said.

Now, that number is about 1,000.

His Operation Lifesaver budget has dwindled, too. In 2010, it was $74,000, about half coming from railroads — down 40 percent from four years earlier.

Some states have fared better. Illinois has increased the number of presentations in recent years. So has Kansas.

But dramatic declines in the num-

ber of presentations were reported in states such as Ohio, New Jersey, Florida, California and Maryland, according to 2002-2010 data submitted to the naMitchell tional office of Operation Lifesaver. For example, California reported reaching 43 percent fewer people with its presentations.

One railroad worker said he began giving safety talks after he was involved in a pedestrian train accident. But several years ago, his rail company announced it would no longer give workers time off for the presentations.

“They will say they fully support Operation Lifesaver,” said the worker, who spoke on condition his name was not used. “It’s a shame.”

Railroad workers “can’t volunteer as many hours as they used to,” Marmie Edwards said in late August, when she was still the national group’s vice president of communications. “It’s a challenge to us.”

Joyce Rose, who recently took over as Operation Lifesaver president, ac-

knowledged the loss of railroad workers, but she said the organization remains active “even with all the funding challenges.”

Rose pointed to data showing that Operation Lifesaver presentations reached an average of 1 million people each year since 2005. She said she could not provide older statistics for comparison.

In Wentzville, Mooney, joined by a Norfolk Southern police officer and several state patrol officers, handed out brochures to motorists at the Linn Avenue crossing.

But the boy fatally struck by a train here in July wasn’t in a car. Mitchell Maserang, 15, was walking along the tracks wearing headphones when the Norfolk Southern locomotive hit him.

The crossing with its lights and gates is not much of a threat to motorists. But it is the only place to legally cross the railroad tracks for nearly a mile along Main Street. So pedestrians often cross at other spots, too. The tracks are wide open, free of obstructions — aside from the new “No Trespassing” signs erected after Mitchell died.

RAILS • FROM A8

Incidents appear to be clustered, researcher says.

A POTENTIAL HOT SPOT?

Sept. 15, 2012

A look at five accidents, four of them fatal, in less than three years in a 1½-mile span along CSX tracks in suburban Maryland.

Lafay ette

PA .

N.J.

May 30, 2012

DEL.

Mary Gaffney, 17, killed by a CSX train at 11:35 p.m.

MD. DETAIL AREA

A 25-year-old man severely injured by a CSX train at 3:30 p.m.

Washington, D.C.

Queensb

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VA .

410

March 30, 2011

Bradford Bacon, 41, of University Park, Md., killed by CSX train just before midnight.

Nichols on Rive

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changes to the nation’s railroad regulations, including the GPS rule.

“The industry sees no business or safety case for requiring this additional information,’” said Don Browning, a manager in the safety department at Norfolk Southern, according to a hearing transcript. Other groups chimed in with letters. The Association of American Railroads opposed the measure, writing that “GPS devices do not get reception in all locations.” “Satellite networks can and do fail,” noted the Southeastern Pennsylvania Transportation Authority, known as SEPTA. But perhaps the baldest objection arrived from Amtrak.

Amtrak worried how the rich location data would be used. “Stated otherwise,” wrote Roy Deitchman, an Amtrak vice president, “Amtrak is concerned that the accumulation of such data could potentially lead to the improper assumption that railroads have a duty toward trespassers not otherwise recognized by law.”

In other words, railroads enjoy relative immunity from concerns about the prevention of trespassing. And Amtrak wanted to keep it that way.

But five unions representing railroad workers supported the move. So did state railroad regulators. California’s railroad agency noted the “significant difficulty” it had identifying hot spots. Regulators in Illinois sounded excited by the proposed change. And they were about to help provide a hint of how useful better mapping data could be.

In 2010, Ian Savage, a railroad economist at Northwestern University in Evanston, Ill., became curious about mapping trespassing incidents. He’d written about the “frustrating and mystifying” consistency of the trespassing casualty numbers.

Savage and a student looked at 299 railroad trespassing deaths over eight years in the Chicago area using data from Illinois regulators. They found that trains fatally collided with vastly more pedestrians than motorists, and that suicides were a sizable minority of the cases. Surprisingly few deaths occurred in Chicago proper. Savage theorized this was because the city’s tracks often are tucked behind fences, with tunnels and overpasses for people to cross. You can’t get hit by a train if you can’t reach the tracks.

April 15, 2011 Lillian Marie Savoy, 80, of Hyattsville, Md., killed by MARC train at 4:20 p.m.

Oct. 8, 2009 1

Deca tur

Emeterio Moreno-Luna, 29, killed by a CSX train at 1 p.m.

ABOUT THIS SERIES The Post-Dispatch began looking into railroad pedestrian deaths in June, shortly after a fatal collision in Kirkwood. It examined hundreds of fatalities across the country and conducted more than 90 interviews for these articles, talking with victims’ families, railroad officials and workers, regulators, experts, public officials and police. The newspaper reviewed thousands of pages of court documents, regulatory filings and industry publications.

• Find previous installments, a video and a map at STLtoday.com/rails

And there was this, as described in a slide presenting their findings: “Geographically, incidents do not seem to be random.”

The deaths were not spread evenly along the rail lines. They were clustered in hot spots.

In June 2011, the new federal rule on GPS coordinates finally took effect. Since then, railroads have reported the precise location of pedestrians hit by the trains.

But at least four more years of pinpointed casualties are needed before researchers can even begin to identify trespassing hot spots, says the Federal Railroad Administration.

Even then, it’s unclear what regulators will do.

For grade crossings, an accident prediction formula — based on traffic counts and previous crashes — is widely used to determine if safety improvements are necessary.

But nothing similar exists for pedestrians.

Not with federal regulators. And not at railroads such as Union Pacific. That railroad’s public safety director has testified that Union Pacific uses a formula for assessing homeland security risks, but not trespassing ones.

Decisions on anti-trespassing efforts are made case by case, said Union Pacific’s head of public safety, Dale Bray, in a 2010 deposition.

Bray was asked if the railroad had any guidelines for addressing the trespassing problem.

“Are they specifically written in a document?” Bray said. “We have not had a business need to do that.”

In Maryland, Gaffney hastily arranged a funeral for his daughter on June 4. She was the middle of his three children. Mary loved art and math. She talked of studying mechanical engineering in college one day. She dreamed of designing motorcycles, even though she didn’t know how to ride one. So father and daughter were planning to take a class together at the local community college to learn.

Gaffney pushes aside those thoughts as he tries to learn what happened to Mary that night in May. “This could’ve been a tragic accident,” he said. “But I want an answer to this.”

He added: “It doesn’t make sense.”

Coming Tuesday: In the search for solutions, a fight over fences.

Playoff run?

Download our Post-Dispatch football app and join today’s live chat with Rams reporter Jim Thomas. STLtoday.com/apps

T H E N O . 1 S T. L O U I S W E B S I T E A N D N E W S P A P E R

Tuesday • 12.11.2012 • $1.50

Former nanny is suing police Rebecca Lynn Harris, convicted of assaulting an infant, says police violated her rights.

DEATH ON THE RAILS: PART 3

fight over fences Railroads resist barriers despite pleas for help.

By Susan Weich sweich@post-dispatch.com 636-493-9674

A former nanny convicted of severely injuring an infant in St. Peters is suing the police who interrogated her, asking for damages of more than $500,000.

The lawsuit, filed in federal court in St. Louis, is the latest twist in a case that already has yielded a $7.5 million civil judgment, a criminal conviction, an overturning of that conviction, and a subsequent plea of no contest. In addition, the lawyer who represented the family in its civil suit against the nanny is now representing the nanny in her suit against police.

Rebecca Lynn Harris, 26, formerly lived in O’Fallon, Mo., but court papers list her address now as St. Charles County. In a suit filed late last month, Harris says St. Peters Police Detective Jim See NANNY • Page A4

Stalemate leaves states in limbo Budget decisions on hold pending outcome of ‘fiscal cliff’ talks.

Associated Press

JEFFERSON CITY • A plunge over the federal “fiscal cliff” may sound like a terrifying risk for many state officials anxiously watching as Washington struggles to avert automatic tax hikes and spending cuts set to start with the new year. Yet their greatest angst may stem not from the potential loss of billions of dollars, but the confusion surrounding it all.

The longer the White House and Congress remain at odds, the more difficult it becomes for governors and lawmakers who are trying to piece together their own budgets. Many states depend on federal grants to help finance education, See BUDGET • Page A4

David Carson • dcarson@post-dispatch.com

A freight train rolls last month past a memorial for a middle school girl who was killed by a train in 1988 in Villa Park, Ill. Heather Hayes, 14, was struck while walking home from school. More deaths followed, and in 2006 a 15-year-old girl led efforts to get a fence built.

Ones to watch

© 2012, St. Louis Post-Dispatch

By Todd C. Frankel • tfrankel@post-dispatch.com > 314-340-8110

VILLA PARK, ILL. • Tiffany Davis was determined to build the barrier

that no one else would. § By age 15, she’d lost two friends in two years to the railroad tracks in this small Chicago suburb. First was 13-yearold Alyssa Gonzalez. Then 14-year-old Kristen Bowen was struck by a freight train as she ran toward a small park.

$10 for $20 of food, drinks at Camille’s Sidewalk Cafe See AD on page A2 sign up today at stltoday.com/todaysdeal

Other pedestrians have died on the tracks here. Trackside memorials dot the rails, including a wood cross marking the spot where a middle school student was killed and two others injured as they walked home from school years ago. But it was Kristen’s accident in 2006 that spurred Tiffany Davis and shook the town, reverberations that eventually led to another tragedy, this time involving Kristen’s twin sister.

See RAILS • Page A7

inside

• Federal agency’s stance on fencing changes. A8

• Light rail sees fences differently. A9

Kendra Bowen (left) struggled after the death of her twin sister Kristen, who was fatally struck by a train in Villa Park, Ill., in 2006 when they were both 14.

online

See a video, explore a map and read the series. STLtoday.com/rails

W e at h e r • To day 43 ° • To n i g h t 3 6 ° • To M O R R OW 4 8 ° • fo r ec ast A 1 8 Vol. 134, No. 346 ©2012

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12.11.2012 • TUESDAY • M 1

ST. LOUIS POST-DISPATCH • A7

DEATH ON THE RAILS

“YOU CAN MAKE IT UNATTRACTIVE ENOUGH TO CROSS AT A PARTICULAR POINT.” — David Clarke, University of Tennessee

PHOTOS BY DAVID CARSON • dcarson@post-dispatch.com

Students from Nipher Middle School in Kirkwood walk along a well-worn path across railroad tracks on their way home from school in September.

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Education efforts have not reduced pedestrian deaths.

Everyone knew the railroad tracks in Villa Park and neighboring Lombard were a popular shortcut. It had been that way for years. Police could pick out the well-worn paths on satellite photos. The tracks divided neighborhoods and ran past schools and a park. But any talk of blocking access to the busy rails was brushed aside as too difficult and too expensive. Kristen’s death didn’t seem to change that.

“No one stepped up to do anything about it,” Tiffany Davis said.

So she took up the fight. She organized a car wash. She held a concert.

She got fencing donated at cost. More importantly, her efforts put pressure on the railroads and city officials after years of foot-dragging. Today, a black, metal rail fence runs along stretches of the tracks, paid for with railroad and public funds. And it seems to be doing its job, local officials say.

What happened in Villa Park and Lombard is an example of how railroads and towns across the nation often battle over how to prevent pedestriantrain accidents, which are now the leading cause of death on the nation’s railroad system.

Experts say the solutions are never simple. But the tactics used to this point haven’t worked. They have made barely a dent in the number of pedestrian deaths on the tracks each year. At the same time, most other measures of railroad safety have improved dramatically, with much of that progress due to tighter regulation.

“It’s a huge problem,” said Archie Burnham, a railroad safety engineer outside Atlanta. “But to me, it’s a fixable problem.”

Railroads have staked out the posi-

“IT’S A HUGE PROBLEM. BUT TO ME, IT’S A FIXABLE PROBLEM.” — Archie Burnham, railroad safety engineer

tion they don’t need to take steps to stop people from walking on the tracks.

The rails are private property. A person crossing the tracks is trespassing.

The railroads might put up “No Trespassing” signs or stage an enforcement blitz. Beyond that, they need to do little. The courts generally agree. And the federal rules governing railroad operations do not require action.

So communities resort to pleading for help.

Tiffany’s father, John Davis, recalled how his daughter’s campaign made him realize that the railroad companies were not going to protect his family. He had to do it. Inspired by his daughter,

A no trespassing sign erected after Cam Vennard, 14, was killed by a train in Kirkwood, was knocked to the ground within weeks — and was still down last week.

Lake Michigan

355

Villa Park

90

Chicago

Lombard 294

88 55

“WE CAN’T FENCE OFF THE ENTIRE SYSTEM. IT’S IMPRACTICAL TO DO THAT.” — Robin Chapman, Norfolk Southern

Post-Dispatch

he got into local politics. He pushed for a law requiring railroads to barricade tracks near parks and schools. He called it Kristen’s Law. State lawmakers paid little attention.

But after Villa Park got its fence, John Davis, now a village trustee, was invited to neighboring towns to give advice on how they could get fences, too.

He was surprised. Other communities wanted what Villa Park had. They sounded jealous.

“Other towns were screaming, ‘How come you got it?’” he recalled. “‘Why not us?’”

A horrendous fatality can help. In San Jose, Calif., residents’ complaints about one particularly well-known shortcut over the tracks had been ignored for years. Then, in 2005, an Amtrak train fatally struck a 2-year-old boy as he crossed at that spot with his baby sitter. Public outcry grew. Finally, plans for a publicly financed pedestrian overpass were approved. The bridge, named “Xander’s Crossing” after the dead toddler, opened in September.

In some ways, the struggle over what to do about these accidents mirrors the challenge presented decades ago by railroad crossings. In the early 1970s, crossing accidents were the biggest dangers on the railroad. Then hundreds of millions in public funds were spent upgrading thousands of crossings with automatic lights and gates. Since the

early 1980s, crossing accidents have fallen 80 percent.

But stopping people from walking across the rails, what can be done about that?

The three E’s The answer, say railroads and regulators, is contained in a list of three E’s: education, enforcement and engineering.

Education is mostly Operation Lifesaver, a national nonprofit group that spreads the message about rail safety.

Awareness campaigns can help, experts say. But, as the Post-Dispatch reported Monday, Operation Lifesaver’s funding and staffing have been significantly cut.

Enforcement focuses on anti-trespassing laws and arrests. But the railroads employ relatively few police officers in their corporate departments.

Local police, already spread thin, can’t afford to patrol more often. And the specialized training that railroads occasionally provide to local authorities remains focused on grade crossings.

In July, when 14 St. Louis-area officers spent 16 hours over two days in a grade crossing and collision investigation class, just 30 minutes was spent on trespassing.

That leaves engineering — restricting access to the tracks using things such as fences or overpasses.

And it is here that the starkest lines between railroads and communities are drawn.

Union Pacific does not favor engineering solutions to trespassing, although it says it works with communities to erect fencing when appropriate.

“Engineering focuses on grade crossings,” Union Pacific spokesman Mark Davis said.

Railroads also dismiss fencing because, they say, people determined to cross will do it, such as in cases of suicide. But many experts disagree with that. The same tactics used to stop people from accidentally reaching the tracks can be used to stop those seeking them out, said Dr. Matthew Miller, associate director of the Harvard Injury Control Research Center, who has studied suicide prevention methods.

“If you can prevent suicide in the short run, like stopping someone from jumping in front of train, you can prevent suicide in the long run,” Miller said. “Restricting access can save lives.”

The railroads say they can’t restrict access everywhere.

“We can’t fence off the entire system. It’s impractical to do that,” said Robin Chapman, a spokesman for Norfolk Southern.

This is a popular sentiment echoed across the industry. With more than 160,000 miles of railroad track in the United States, fencing every mile of railroad right of way would be impossible.

But no one is suggesting that, either.

What is more common is the call for fencing along known trespassing hot spots. “That is not the same as fencing in 10,000 miles of track,” said David Clarke, director at the University of Tennessee’s Transportation Research Center.

Clarke has heard the arguments that partial fencing means people just walk around.

“I don’t necessarily buy that,” he said. “You can make it unattractive enough to cross at a particular point.”

Fencing is about reducing risk, not eliminating it. It’s the same argument with lights and gates at railroad crossings. Vehicles still collide with trains at crossings with gates, but it happens less often.

“So the gate is not 100 percent effective,” Clarke said.

Fences no one can see The Federal Railroad Administration has tried other tactics.

Currently, the agency has big expectations for a study in West Palm Beach, Fla., which is focused on a stretch of tracks that saw four pedestrian deaths in 2008. Progress has been slow: Researchers complained early on about the lack of data pinpointing where the casualties were occurring. They couldn’t find the hot spots. This longSee RAILS • Page A8

A8 • ST. LOUIS POST-DISPATCH

M 1 • Tuesday • 12.11.2012

DEATH ON THE RAILS

Criticism disappears from memo Agency had said ‘railroads bear responsibility’ for trespassing.

By Todd C. Frankel tfrankel@post-dispatch.com 314-340-8110

The Federal Railroad Administration’s position on fencing is hard to pin down.

Among its duties, as part of the U.S. Department of Transportation, are enforcing safety rules and conducting safety research.

The agency appears to agree with the industry it regulates that fencing is not effective at stopping railroad trespassing. Or, at least that was the agency position published on its website until the Post-Dispatch inquired about it this summer.

The agency puts out a railroad tres-

passing fact sheet. The most recent version, dated December 2008, calls the widespread use of fences “impractical” and limited fencing applications “ineffective.”

That’s not how the agency always saw things. In an older version of the fact sheet, dated March 2008, it didn’t offer any opposition to fencing. In fact, it noted, “The railroads bear the most responsibility in preventing trespassers from entering their property.” By year’s end, that sentence was removed.

It was replaced by wording that called stopping trespassing only “a significant concern for railroads.”

Then, in August, a few weeks after the Post-Dispatch asked the agency about the fact sheet, it disappeared

from its website. Agency spokesman Michael England said this was just part of a periodic update and review. Plus, he said, the vast changes in wording “don’t reflect changes in policy.”

The agency does seem to hold differing views on fencing. One agency official, when pressed on how regulators reached their conclusions on the effectiveness of fencing, said via email: “There has never been any evidence to support that it is (I challenge you to find some). If fencing were the silver bullet that prevented trespassing deaths, don’t you think every railroad would do it?”

But others at the agency see some role for fencing.

“My experience really shows there

are certain locations where properly maintained fencing can help,” said Ron Ries, director of the agency’s Highway-Rail Grade Crossing Safety and Trespass Prevention Division.

In either case, the agency does not have the power to require railroads to install barriers to prevent pedestrian access.

But it is trying other tactics. This summer, the Federal Railroad Administration co-sponsored the Right-ofWay Trespass Prevention Workshop.

The event had been held once before, four years ago. This time it was in St. Louis.

Officials from industry and government met for three days. The PostDispatch was not allowed to attend.

Q. “Do you think that there’s anything that Union Pacific could do to prevent access to pedestrians on that bridge?”

A. “No. I’ll add to that. Nothing reasonable.”

— Dale Bray, Union Pacific

photos by David Carson • dcarson@post-dispatch.com

A Canadian Pacific train rolls by a barbed wire fence as it passes Jerry Gibson’s cows and calves at his farm outside Newtown, Mo. Missouri is one of at least 25 states that hold railroads liable for livestock struck by trains.

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In one experiment, loudspeakers warned pedestrians. time weakness in the agency’s accident reporting system was highlighted in an article Monday in the Post-Dispatch.

The agency declined to discuss its Florida study with the Post-Dispatch because the research was ongoing. But a brief update on the project’s progress, published in a conference journal, noted the research team plans to throw everything at the problem, from more Operation Lifesaver talks to more warning signs to adding fences.

The Federal Railroad Administration hopes to use the project to develop national recommendations.

The last time the agency completed such an ambitious research project was in 2004. And the results were mixed.

The project was focused on a railroad bridge in the town of Pittsford in upstate New York. The bridge crossed the Erie Canal and was popular with swimmers during the summer. In June 1997, a girl, 14, and a boy, 16, were fatally struck by a CSX train on the bridge.

Four years later, the Federal Railroad Administration selected the bridge for a demonstration project. Motion-detection cameras were installed on the bridge, sending images to a security company. If the security guard saw a trespasser, an automated announcement over loudspeakers was triggered: “Warning: You are trespassing on private property and are in danger of being struck by a train. Leave the area immediately.”

The cameras seemed effective. The three-year study credited the warning system with preventing four deaths of people facing close calls with trains.

But the system remains one-of-a-kind.

And CSX is no longer using it.

Farmer Jerry Gibson stands by the fence the railroad erected to protect his cattle.

Nothing can be done Union Pacific owns the tracks running through Villa Park.

The railroad company also owns the tracks over the Brazos River near Texas A&M University. That’s where college freshman Betsy Helbing fell from a railroad bridge in September 2007.

Helbing was partially paralyzed. In the lawsuit that followed, a Union Pacific executive shared how he believed trespassing was essentially unstoppable.

The railroad bridge, known as Whiskey Bridge, runs over a riverbed popular with fossil hunters. The bridge also was popular with college students who climbed onto bridge supports and

watched trains run overhead. It sounds crazy, but it was a long-standing tradition. Helbing visited the bridge with a freshman orientation group. And she was not the first casualty there. The previous year, student Amber Penn had broken her legs in a fall. In 1996, a train fatally struck a 17-year-old girl on the bridge.

After Penn’s accident in 2006, a Union Pacific employee sent an internal email alerting a superior to the danger. “Over the years we have had problems with trespassers getting on that bridge and laying down on the caps while the train goes over them,” wrote the railroad worker, according to court filings. “It is the big thing for (A)ggies to do.”

In another email, a railroad worker

suggested putting up a “No Trespassing” sign: “Not that it will keep them off, but it shows we are doing what we are supposed to do to keep trespassers off the bridge.”

Union Pacific’s public safety director Dale Bray testified in Helbing’s case about why the railroad didn’t do more to keep people off the bridge. He was doubtful that signs worked. He didn’t think a fence was the answer. A fence, he said, could actually force people to walk closer to the track.

“So what I would say is, I would not — in my professional opinion and in my position, I would not recommend even to this day a fence where this incident took place,” Bray testified. “I do not believe that it would prevent the trespassing.”

“Do you think that there’s anything that Union Pacific could do to prevent access to pedestrians on that bridge?” he was asked by an attorney for the paralyzed student.

“No,” Bray responded. “I’ll add to that. Nothing reasonable.”

Fencing for cows Many railroads do fence for livestock, though.

At least 25 states have laws saying railroads are liable for livestock struck by trains along unfenced tracks. Missouri’s fencing law, which has been on the books since at least 1909, is typical.

In Missouri, questions about the law end up going to Joe Koenen, a University of Missouri Extension agricultural business specialist. He is See RAILS • Page A9

12.11.2012 • Tuesday • M 1 ST. LOUIS POST-DISPATCH • A9

DEATH ON THE RAILS

Light rail sees fences differently Denver uses barriers as signal to pedestrians to stay away.

By Todd C. Frankel tfrankel@post-dispatch.com 314-340-8110

Light rail — the railroad’s smaller cousin — often takes a softer view on fencing.

The light rail system in Denver actually requires fencing where trains go faster than 25 mph. In Dallas, design criteria calls for fencing on tracks where trains go more than 45 mph.

Light rail trains are different than railroads. The tracks are busier. The trains

are lighter and quicker. And they tend to run exclusively through heavily populated areas. But major railroads run through many of the same cities, towns and suburbs, too — and that’s where most pedestrians are hit.

David Genova, head of safety and security for Denver’s light rail system, said a fence does not need to create an impenetrable, unsightly barrier. No need for razor wire. Denver uses everything from steel railings next to stations, to wood posts and galvanized wire, to

chain-link fencing.

He likes fencing because it sends a clear signal to people they should not be there.

“I think it’s important to communicate that,” Genova said. People often don’t know that walking on the tracks is against the law. So with fencing, he delivers that message. “You have to be intentional to go out on the tracks.”

People don’t necessarily like the fencing, though, Genova said. He’s heard complaints from residents living along

a new extension that the transit system plans to open next year.

“They don’t like barriers in the neighborhoods. They really want to be able to cross willy-nilly,” Genova said.

In St. Louis, Metro does not have a policy for when to fence its 46 miles of MetroLink track. But the transit agency has installed miles of fencing at places with high foot traffic.

“And,” said spokeswoman Dianne Williams, “we’ll probably put in more in the year to come.”

“We’re not having trespassers.”

— Joe Menolascino, a police officer in Lombard, Ill., where a fence was erected after several deaths

David Carson • dcarson@post-dispatch.com

A memorial was erected for Kristen Bowen after she was killed by a train as she walked across the tracks on her way to this park in Villa Park, Ill., in 2006. The area had seen several pedestrian deaths, and a 15-year-old girl led efforts to get a fence installed.

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To towns’ surprise, fence seems to be saving lives. the point man for ranchers wanting to learn about the railroad’s fencing obligations.

Koenen said railroads used to fence extensively outside of populated areas, through miles of crop and timber lands, even in areas where livestock were not known to roam. They’ve cut back some, but there is still plenty of post and wire fencing along the tracks. And the railroads are particular about the work.

“I know several railroads that wouldn’t let ranchers build it themselves,” Koenen said. “They wanted to do it to their specifications.”

To Ken Heathington, a railroad safety engineer who has worked as an expert witness in railroad injury lawsuits, the idea of fencing for livestock but not people doesn’t add up.

Thousands of miles of interstate highway are fenced, he said.

So are airport perimeters.

And power plants — anyplace you don’t want people.

So, Heathington said, to argue that railroads should have fences for livestock, “but it doesn’t hurt to have people in there? That doesn’t make sense.”

Accidental success The railroad industry has fended off attempts to require fencing along railroad tracks. The last serious attempt at the federal level came more than two decades ago. In 1987, Rep. Thomas Luken, D-Ohio, introduced a bill that included a provision requiring fencing in rail yards “in heavily populated areas in order to prevent injury to nonrailroad personnel.”

Luken’s bill went nowhere. But for the next couple of years, Luken, chairman of the House Energy and Commerce subcommittee, kept plugging away at the issue. He held hearings on whether the railroads should be re-

quired to fence tracks running through dense suburbs and cities. That effort eventually died, too.

Some cities have seen success with limited fencing — even when they were not expecting it.

In Moorhead, Minn., the city fenced along the railroad tracks cutting through downtown. So did neighboring Fargo, N.D., just across the Red River.

The 2½ miles of fencing, along with fortified crossings, were aimed at qualifying for a “whistle ban,” allowing trains to skip blowing their horns at each crossing.

The train horns stopped in late 2007 — and, surprisingly, so did the pedestrian railroad accidents.

It had been a problem: In the eight years before the whistle ban, 10 people died walking on the tracks in the counties that are home to Moorhead and Fargo. Just a few months before the fences went up, a train fatally struck a 21-year-old college student in downtown Moorhead. The accidents seemed to just keep happening, said Moorhead assistant city engineer Tom Trowbridge. “It was getting pretty ridiculous.”

But no pedestrians have died inside the whistle zone in the last five years.

“In terms of safety,” Trowbridge said, “it’s been a success.”

No easy answers Villa Park got its fence, too. So did neighboring Lombard. But it wasn’t easy. Villa Park fenced about 1.5 miles of one side of the track. Lombard did the other side. There are gaps, big stretches where people can cross. Still, the limited fencing seems to be working.

“We’re not having trespassers,” said Joe Menolascino, a Lombard police officer.

“Our numbers have definitely

“They (trains) scare the bejeSus out of me.”

— John Davis, father of victim

ABOUT thIS series The Post-Dispatch began looking into railroad pedestrian deaths in June, shortly after a fatal collision in Kirkwood.

It examined hundreds of fatalities across the country and conducted more than 90 interviews for these articles, talking with victims’ families, railroad officials and workers, regulators, experts, public officials and police. The newspaper reviewed thousands of pages of court documents, regulatory filings and industry publications.

Part 1 • Hundreds killed walking tracks.

Part 2 • Railroads fight efforts to study collisions.

• Read previous installments of the series, see a video and explore an interactive map of accidents. STLtoday.com/rails

dropped,” said William Lyons, a Villa Park police officer who investigates train accidents.

The fences are not perfect, Lyons said. But they help.

Tiffany Davis is 22 now and living in Texas, years removed from her fencebuilding campaign in Villa Park. After Kristen Bowen died, Tiffany volunteered with Operation Lifesaver. She talked to her friends about railroad safety. But people kept dying. She can count nine people she’s known who have died along the tracks.

“What else can I do?” she asked.

Her father still lives in Villa Park.

He could do without the trains. “They scare the bejesus out of me,” John Davis said. These days, he’s pushing for a pedestrian underpass at one busy intersection.

One block from the railroad tracks sits a modest home. It’s where Kristen Bowen lived. North Ahrens Street dead-ends into the tracks. On the other side is a small park. That’s where Kristen was headed on Feb. 11, 2006.

Kristen’s father Ray Zukowski still lives in that house. After Kristen died, he poured his energy into a website detailing the lives lost along railroad tracks in Illinois. He found some comfort in the changes brought by his daughter’s death.

But nothing seemed to ease the sense of loss for Kristen’s twin sister, Kendra Bowen. In February 2010, days after the four-year anniversary of her sister’s death, Kendra, then 18, sneaked out of the house on the dead-end street. She headed for the tracks.

She walked past the spot where her twin sister died, where a black, metal rail fence now blocked the path. She walked a few more blocks to an open spot and waited in the darkness. A freight train approached. She stepped onto the tracks. The train couldn’t stop in time.