"Motorists have to bear their own share of responsibility for their safety at crossings," says Greg Fairbourn, a Phoenix attorney who is defending Southern Pacific. "The plaintiffs are very nice folks, but it's going to be up to a jury to decide who was liable in this case. Our case will show it wasn't us."
Southern Pacific's defense is akin to that of defendants in many other crossing cases around the nation. Railroad attorneys argue that the government, not the railroad, is responsible under binding laws for improving the safety at crossings. Because of that, Southern Pacific has contended, lawsuits against railroads based on unsafe crossings are illegal under federal law.

Beyond this legal maneuvering, the railroad cites another reason the deaths are not its fault: John Vargo, the railroad says, was negligent because he had been drinking on that holiday morning--the equivalent of about two 12-ounce beers.

But the Vargo and Felix families still see Southern Pacific as one of the villains.

"I hate the railroad for what it didn't do at that crossing and Pinal County for letting them get away with it," says Ron Felix Sr., a supermarket supervisor whose oldest son died in the September 1988 crash.

"It hits me when I'm in bed at night and I hear that Southern Pacific whistle in the distance. All these people knew that crossing was bad. But in the interim, my son, my best friend and his daughter were killed. It's sick."

@rule:

@body:Casa Grande was one of several Arizona communities that grew up near a Southern Pacific Railroad line in the second half of the 19th century. Like the others, the central Arizona town allowed railroads to put track across existing streets and roads.

As in the case of Ethington Road, streets and track sometimes intersected at strange and potentially deadly angles. But crossings weren't much of a safety issue until the advent of automobiles in the early 1900s.

Prompted in 1912 by an increasing number of deaths and injuries at crossings, Congress for the first time appropriated federal dollars to be used for crossing improvements on a 50-50 matching basis with the states. Until 1935, railroads usually paid all or a portion of building, maintaining and improving the nation's 200,000 crossings.

In 1935, however, the burden of legal responsibility at crossings clearly began to shift from the railroads to the general public. U.S. Supreme Court Justice Louis Brandeis wrote for the majority in a crossing test case:

"The railroad has ceased to be the prime instrument of danger and the main cause of accidents. It is the railroad which now requires protection from dangers incident to motor transportation."
Succumbing to heavy lobbying from the powerful railroad industry, the Interstate Commerce Commission extended that view mightily in the 1960s. The ICC concluded that the public, not the railroads, should be responsible--fiscally and otherwise--for crossing safety.

By the early 1970s, more than 1,000 people each year were dying in car-train wrecks, and another 5,000 were being injured.

The carnage led to the passage of federal railroad-safety laws in 1970 and 1973, landmark laws that later would come into play at Ethington Road.

The federal laws require states to provide a yearly priority list of crossings that need to be improved. In return the feds dole out $170 million a year for crossing improvements on a 90-10 federal-state matching basis. The improvements usually consist of automatic gate arms with flashing lights that experts say cut fatalities by 90 percent.

Two years ago, the U.S. Department of Transportation estimated the improvements had reduced the annual number of deaths almost by half. (Still, deaths remain high. In 1990, 568 people lost their lives in car-train wrecks.)

In Arizona the feds have contributed $10 million and the state $1 million since 1978 to improve safety at 171 railroad crossings. The crossing program's results have been good, according to Arizona Corporation Commission records: The number of deaths and injuries at crossings have been reduced by one-third.

But there's been a discouraging downside to this rather sunny picture. For one thing, far more improvements at crossings in Arizona and nationwide could have been completed by now if politicians and bureaucrats had done their jobs properly.

The Brotherhood of Railroad Signalmen estimates $50 million in federal funding for crossing improvements has been lost since 1973 because local officials failed to apply for the money in time. No one is willing to estimate how many deaths have occurred because of this. At the same time, railroads around the country have shouldered less and less responsibility when things go wrong. The railroad lobby and pliant politicians continue to make it more difficult for private citizens to seek civil redress through the courts.

In 1987 Congress passed a law making it illegal for plaintiffs' lawyers to inform trial juries of government documents "compiled for the purpose of identifying, evaluating or planning the safety enhancement of. . .railway-highway crossings."

That law could have great impact at the Vargo-Felix trial: It could prevent the jury from seeing Ray Bernal's prophetic 1975 memos or the state's 1977 priority list that included the Ethington Road crossing.

Arizona Corporation Commission railroad-safety chief Don Thompson thinks the railroads' position concerning questions of crossing safety is abhorrent.

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