RUNAWAY TRAINSTHE RAILROAD INDUSTRY WON'T TAKEN THE BLAME IF YOU GET KILLED AT ONE OF ITS CROSSINGS
What Ray Bernal saw west of Casa Grande on June 30, 1975, troubled him so much he wrote a memo to his boss.
An inspector for the Arizona Corporation Commission, Bernal wasn't strictly responsible for the public's safety at Arizona's railroad crossings. His job was to check on the condition of the 3,200 miles of train track that crisscross the state. But the cockeyed crossing on the Southern Pacific Railroad main line at Pinal County's Ethington Road looked unsafe enough to Bernal to inspire him to action, even though it wasn't his job.
"This railroad crossing sure has a bad road alignment and also a steep dip between north rail and the Maricopa Road," the onetime Southern Pacific employee began his first handwritten memo. "I will work on this."
Several weeks later, Bernal wrote his supervisor of returning to the crossing with engineers from Pinal County and Southern Pacific: "We will get the road realigned in right angle to the railroad. The approaches to the crossing will be level. I will keep you posted as soon as recommendations are final."
But two years passed before representatives of Southern Pacific and federal, state and county governments again met at the Ethington Road crossing. A state report indicates all present agreed with Bernal's assessment that the crossing needed fixing.
More years slipped by, however, and about all that was realized at Ethington Road were Bernal's worst fears. In 1983 a Casa Grande couple was killed by a Southern Pacific train at the crossing. A few years after that, a woman nearly lost her life there.
By Labor Day, 1988, the rural crossing looked much the same as it had when Bernal wrote his urgent memos more than 13 years earlier. On that sunny, hot September 5 morning, there were no automatic gate arms at Ethington Road, no flashing lights to warn drivers of an approaching locomotive, not even a stop sign.
A yellow railroad-crossing sign and a pair of ancient crossbuck markers were all that alerted drivers to potential danger.
Late that morning, 39-year-old Casa Grande native John Vargo, his 13-year-old daughter Candice, and family friend Ronnie Felix hopped into Vargo's Chevrolet pickup to go dove hunting. The trio drove out the Maricopa-Casa Grande Highway for a few miles until they reached Ethington Road. Eyewitnesses saw the pickup turn left onto the unpaved road and continue at about 25 mph toward the train tracks.
In those days, the tracks bisected Ethington Road at an acute angle, and southbound drivers had to look back over their left shoulders to see oncoming trains. The untrimmed, late-summer foliage made trains even more difficult to notice.
By some accounts, Southern Pacific freight train 7833 never blew its whistle or rang its bells while approaching the crossing, as prescribed by Arizona law and railroad policy.
By all accounts, the driver of the pickup truck didn't slow down or stop at the crossing.
The force of the crash hurled all three passengers from the crushed pickup. Father and daughter John and Candice Vargo died instantly. Ronnie Felix, a 20-year-old baseball pitcher from nearby Central Arizona College, died a few hours later.
The day after the triple fatality, Southern Pacific ordered automatic gate arms and flashing lights for the Ethington Road crossing. Within three weeks, Southern Pacific and Pinal County crews started their long-planned, on-site work.
The crews realigned Ethington so it crossed the tracks at a much-safer right angle; then they installed the gate arms and flashing lights.
No one has been killed or injured at the crossing since.
Trouble is, the project recommended by Ray Bernal back in 1975 could--and should--have been finished far before the Vargos and Ronnie Felix were killed. But the Egyptians may have had an easier time finishing the Great Pyramid than Southern Pacific and Pinal County had with the relatively simple crossing job at Ethington Road.
@body:Shortly after the fatal crash, the Vargo and Felix families hired a pair of Phoenix lawyers to represent them. In August 1989, attorneys Brek Nitsche and Ian Neale alleged in a lawsuit on behalf of the families that Southern Pacific Railroad and Pinal County were responsible for the three deaths.
The civil case is edging its way through the Pinal County Superior Court system. Millions of dollars may be at stake; the finger-pointing is fierce. No one involved accepts any blame for the Ethington Road tragedies.
But public records analyzed by New Times reveal a textbook example of bureaucratic foot-dragging, corporate intransigence and bad luck.
Southern Pacific and Pinal County have expended more effort trying to absolve themselves of liability than they did to make one of Arizona's 2,000 train crossings safer for passersby. Southern Pacific's philosophy in the Vargo-Felix case has been, yes, our train hit them at our crossing, but it wasn't our fault--and we're not paying.
The railroad's stance in the case is predictable. It wouldn't be fiscally prudent for railroads to admit any wrongdoing in the deaths of hundreds each year at crossings.
"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."
@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.
"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."
@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.
@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.
The three people killed at the Ethington Road crossing in September 1988 certainly knew nothing of the unending machinations between the governments and the railroad.
"They were just going to have fun with each other," says Ginger Vargo White, a grade-school teacher whose husband and youngest daughter died in the crash. (She has since married a fellow schoolteacher.) "None of us knew that the railroad and the government do things like they did."
@body:John Vargo led a simple life with Ginger and their three teenage daughters. The Coca-Cola truck driver was a devoted family man who typically spent his free time outside--barbecuing, hunting and fishing with his kids and family friends.
Candice Vargo doted on her father and vice versa. The 13-year-old loved little-girl things, but she also adored the outdoors. She was thrilled when her dad invited her to go dove hunting on Labor Day with close family friend Ronnie Felix.
The Vargos and the Felixes had been friends for years. Ron Felix Sr. and John Vargo had met at a Bashas' supermarket in Casa Grande that Felix managed and the pair had hit it off. Each had three children--Vargo's were a few years younger than Felix's--and the two families often did something together on Sundays.
Ron Felix Sr. says John Vargo served "as a second father to my kids. He was the father who liked to hunt and fish, unlike me."
A daylong dove-hunting trip on Labor Day seemed a great way to end the summer for Vargo, his youngest daughter, Candice, and Ronnie Felix. Felix had enrolled for his sophomore year of college at Central Arizona College, a two-year school known for its excellent baseball program.
Felix earned numerous honors while pitching at Casa Grande High School, and in 1987 he won a scholarship to Scottsdale Community College. Ronnie had a prototypical body for a pitcher--lanky and wiry--and he patterned himself after the New York Mets' Dwight Gooden.
Like millions of other youngsters, Ronnie Felix dreamed of playing big-league ball. But like Gooden, Ronnie found himself with an injured right arm after throwing too many pitches.
But his dad says Ronnie's arm strength had improved enough over the summer of 1988 that the coach at Central Arizona College had offered a scholarship. Ronnie decided to transfer, his father says, so he could be closer to his friends and family. The fall semester was around the corner when John Vargo asked Ronnie if he wanted to join him and Candice on the dove-hunting excursion.
Early the next morning, according to depositions, Vargo mowed his lawn and fiddled with his pickup before he and Candice loaded up the truck. No one has testified they saw Vargo drink any liquor that morning, despite a blood-alcohol level of .055 taken after his death.
That reading was well under the .10 limit at which Arizona law assumes a driver is under the influence. But there was enough liquor in John Vargo's blood to make his alleged negligence behind the wheel a valid question for the jury to consider at trial.
Ronnie Felix came by around 10:30 a.m. and the trio headed out to the Maricopa-Casa Grande Highway in Vargo's Chevy pickup. It only took them a few minutes to reach Ethington Road.
Epifanio Rodriguez and David Valdez were driving home in the opposite direction after cleaning spinach in Eloy that morning when they saw the pickup turn left onto Ethington. The angled crossing was only a few seconds ahead.
"I told David that the train was gonna hit the pickup," Rodriguez told a Southern Pacific investigator through a translator a few days after the accident. "It [the pickup truck] didn't seem like it stopped. When the train hit the truck, I saw it well."
The Vargos and Ronnie Felix probably never knew what hit them.
"I don't think he saw the train coming," David Valdez told investigators also through a translator, "because there was a hill, kind of high, that obstructs between the track and the train."
It was the same obstruction that the ACC's Ray Bernal had warned about in his 1975 memos.
Rodriguez claimed in a separate interview that he had heard the train's whistle, but only after it had struck John Vargo's pickup. Valdez added he had never heard the train blow its whistle or ring its bells at the accident site. Southern Pacific engineer Joseph Donnegan and conductor John McConnell have said under oath that Donnegan started to blow the whistle one-quarter of a mile before the Ethington Road crossing, as is required under Arizona law.
"Everything just kind of slowed down," Donnegan said of the accident. "I can remember standing up and blowing the whistle with both hands."
Whether he blew it or not may not have mattered to the trio, anyway. The windows of Vargo's pickup were up and his air-conditioner likely was going full blast. The three probably were chatting when the train rammed into the driver's side of the pickup. Farmworkers Valdez and Rodriguez immediately stopped their car and hopped between the stopped freight cars to try to help. The dead bodies of an older man and a young girl were on the desert floor next to the demolished pickup. Several feet away from the bodies, a young man was barely alive.
The pair rendered what aid they could to Ronnie Felix until the authorities arrived within a few minutes. A helicopter took Felix to Phoenix for emergency treatment at Maricopa Medical Center, where he soon died.
Back at Ethington Road, sheriff's investigators tried to sort out what had happened. Farmworker David Valdez wandered around the gory scene in a daze. He picked up Candice Vargo's little handbag and the shoes that had been torn off her feet in the crash.
Valdez held on to the items for a few minutes. Then he handed them to a cop and went home.
Southern Pacific claims it was coincidence, but it ordered the automatic gate arms and flashing lights for Ethington Road the day after the triple fatality. Construction at the site started within three weeks.
@body:The Vargo-Felix trial is scheduled to begin this September in the courtroom of Judge Robert R. Bean in Florence.
Actually there may be two trials. If a jury decides that Southern Pacific Railroad and Pinal County were liable for the deaths of the Vargos and Ronnie Felix, jurors at a second trial will be asked to assess monetary damages.
Southern Pacific blames Pinal County, the State of Arizona and the late John Vargo for the 1988 accident. The railroad claims Vargo had been driving negligently, noting that a postmortem blood-alcohol test indicated Vargo had been drinking.
For its part, Pinal County has admitted the Ethington Road crossing was a "significant hazard" to passersby. But the county blames Southern Pacific, the State of Arizona and John Vargo for the fatal accident.
The State of Arizona--which isn't a defendant in the suit--blames Southern Pacific and Pinal County for not finishing the crossing project until it was too late.
"We can lead the railroad and the county to the water," says ACC railroad-safety chief Don Thompson, "but we can't make them drink. In this case, they didn't drink until after they should have."
Although Pinal County sheriff's investigators have concluded that John Vargo--and not Ronnie Felix--likely was driving the pickup that day, it remains to be seen whether Southern Pacific will be able to prove it at trial. The point could be important. Had Ronnie Felix been driving, the alcohol issue would be rendered moot.
Investigators didn't find any open containers of alcohol near the accident scene, but Vargo's blood-alcohol level did indicate the equivalent of a couple of beers in his system. Vargo's widow, Ginger, is irate that authorities took blood-alcohol readings of her dead husband, while allowing the Southern Pacific engineer to leave without being tested.
"What do you think the public would have said if they had just taken blood from the dead policemen that Richard Horowitz killed up in Phoenix?" she says, referring to the 1990 head-on crash in which an intoxicated Phoenix attorney rammed into two police officers. "You read about all those train wrecks in which the engineer was drunk or high. It's just not right."
Judge Bean, in pretrial rulings, has sent out mixed messages concerning the responsibility of Southern Pacific and Pinal County for the accident.
Southern Pacific contends that federal laws prohibit civil lawsuits against railroads in many crossing-safety cases. While acknowledging "a decided split of legal authority," Bean ruled earlier this year against the railroad.
But the judge then surprised everyone by ruling in favor of Pinal County on the same question, letting the county off the hook "as to the issues of warning devices and construction." The United States Supreme Court a few weeks ago agreed to consider the issue in a Georgia crossing case similar to the one in Pinal County.
The idea that federal law prohibits lawsuits against railroads is sadly laughable for those who lost family and friends in the Labor Day, 1988, crash. "To me it's as if the railroad is saying it has carte blanche to do what it wants--a license to kill," says Ron Felix Sr.
He and the others continue to do what the grief-stricken do: Even now, four years after the deaths, they say they are trying to strike a balance between dealing with their loss and being obsessed by it.
Many of the immediate family members underwent extensive counseling after the deaths of their loved ones. Even with that help, Ron Felix Sr. says, he required hospitalization because he couldn't handle the stress and depression connected with his son's death.
Several days after the fatal accident, Felix Sr. returned to Ethington Road. "I don't know what I was looking for," he says, closing his eyes for an extended moment. "I saw the hypodermic needles they had used on Ronnie. I saw where his body had landed. It hit me that I had a son that I wasn't going to see anymore. I had to find out why it happened. Ever since I found out, my blood has been boiling."
Ginger Vargo White has kept Candice's bedroom just as it was on the morning her daughter died. She says she has learned some terrible truths about how government and big business sometimes operate.
"I don't ask for someone to tell me to fix my brakes when I know they need fixing," she says. "It's not enough to lose people you love. I just can't believe the railroad and the government can get away with killing people."
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