"They seem to be saying that they can do what they want, when they want," says Thompson, himself a former investigator for a railroad in Colorado. "I just don't buy it."
Tucson attorney Dale Haralson took an even darker view in a 1991 law-journal essay about railroad-crossing cases: "This attempt to escape responsibility for their actions resembles the Nuremberg defense--that they were just following orders--and is morally and legally untenable."

@rule:

@body:The late 1970s probably was the most high-profile time for railroad crossings in state history. In March 1978, the Arizona media gave big play to the start of Operation Lifesaver--a state crossing-safety education program financed by the Southern Pacific and Santa Fe railroads.

But that well-publicized program didn't translate into the needed crossing improvements at Ethington Road. Ray Bernal says that, after he delivered his memos in 1975, he had no inkling how little Southern Pacific would get accomplished at the crossing.

"The company always has new planking on hand," the now-retired Bernal said in a recent deposition. "Crossbucks, that's no problem. Stop sign, no problem. Filling in holes with graders. Anything like that. . .I'm sure that there was no reason for not doing it."
As months went by, Bernal recalled, "I would call the office and say, 'You people haven't done anything about this.' And I called the railroad."

For once money wasn't the problem; human negligence was.
The Arizona Legislature in 1977 appropriated $200,000 to cover the state's 10 percent matching share of crossing funds. In 1978 Ethington Road became one of 39 crossings on the state's priority list for safety improvements that year. On January 10, 1978, the Arizona Corporation Commission officially authorized installation of flashing lights and automatic gate arms at the site "in the interest of public safety."

But again nothing happened at Ethington Road. In May 1978, Arizona Corporation Commission railroad-safety specialist Bob Starkey reminded Pinal County Board of Supervisors chairman James Karam that money was available to upgrade the Ethington Road crossing "at little or no cost to the county." All the county had to do was request federal funding through the Arizona Department of Transportation.

If Pinal County didn't want to apply, Starkey concluded in his May 25, 1978, letter, "these funds can either be held or reapplied to another crossing in some other part of the state."

On June 5, 1978, another Pinal County supervisor--Jimmie Kerr--finally responded to a state questionnaire about Ethington Road.

"Does Pinal County want [Ethington Road] upgraded with flashing lights and automatic gate arms?" the questionnaire asked.

"Yes," Kerr responded. He added that the formal application for the federal dollars would be completed that day.

It wasn't. And Kerr, now the mayor of Casa Grande, has told attorneys he doesn't recall the application. The state subsequently dropped Ethington Road from its priority list. Arizona Corporation Commission documents show the next entry in the Ethington Road file wasn't until 1985--seven years later.

@rule:

@body:The problems that plagued the star-crossed Ethington Road project in the late 1970s continued when Pinal County resurrected it in March 1985.

The records don't reflect why the county saw fit to apply for federal funding after years of inaction. But several people close to the case say the April 6, 1983, deaths of Casa Grande residents Clark and Sheila Peffley at the crossing had something to do with it.

The Peffleys died when a Southern Pacific freight train moving backward across the Ethington Road crossing at night smashed into their car. In May 1985, a Superior Court judge awarded the Peffley children $700,000 in damages.

The railroad could have fixed the crossing at no cost to itself. Although delays had almost doubled the cost of the Ethington Road project by the late 1980s, the feds would pick up 90 percent of the $120,000 price tag. Southern Pacific was to handle most of the construction work at the site, but the project was to cost it nothing. The State of Arizona would pay the rest, except for a few thousand dollars Pinal County would owe for road work. By law the railroad would assume ownership of the automatic gate arms and flashing lights at the crossing. Southern Pacific would bear the costs of maintaining the new hardware at the crossing.

The project's paperwork inched its way through the local-state-federal-railroad bureaucracies for two more years. On July 17, 1987, Southern Pacific signed a contract with the State of Arizona--which was acting by law as a middleman for Pinal County--to install flashing lights and automatic gate arms at Ethington Road.

The contract stipulated that Southern Pacific finish the project "within one year after [it] is authorized by the state to proceed with construction."

That official authorization came August 24, 1987.
What happened between that date and the deaths of John Vargo and daughter Candice and Ronnie Felix on September 5, 1988, has become a major part of the bitter finger-pointing in the case.

Pinal County contends the State of Arizona should have compelled Southern Pacific to fulfill its contract on time. Southern Pacific's engineers say they were waiting for Pinal County to realign Ethington Road. A Pinal County construction supervisor says he couldn't get a Southern Pacific work crew out to the crossing. The state says Southern Pacific never mentioned any problems. But nothing in the Arizona Corporation Commission files indicates the state pushed the railroad to complete the project on time--by August 24, 1988.

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