Jury finds for railroad in death of car that hit train

A Jackson County jury rejected a wrongful death claim filed by the estranged son of a 56-year-old man killed when the car in which he was a passenger struck a Kansas City Southern Railway Co. freight train.

Seth Heishman sued the railroad company in August 2019, less than two months after his father Gary Heishman died when a Ford Escape SUV driven by Gary’s sister Debra Torres, 60, hit the train at the Front Street crossing near its intersection with Topping Avenue. The train was just entering Torres’ lane of travel at 3 miles per hour when the crash happened.

According to the lawsuit, as well as plaintiff’s attorney Brennan Delaney of Langdon & Emison and court testimony, the collision occurred 30 minutes after sunset on June 20, 2019, as railroad conductor Napoleon Smith was flagging a grade crossing while wearing a reflective vest and carrying a lantern.

Lead defense attorney Sean Hamer of Scharnhorst Ast Kennard Griffin, which represented KC Southern, said that Torres, who was also named a defendant, “did not see the 6-foot-6 Mr. Smith, his lantern, his vest, the flares or the 14-foot-tall caboose entering the roadway. She also did not heed the yield sign and cross bucks at the crossing,” nor slow from the road’s posted 45 mph speed limit, he said.

“Without slowing or stopping, Ms. Torres ran her Ford Escape SUV into the knuckle on the end of the caboose,” he said. “As Smith was attempting to warn and stop vehicle traffic so he could initiate a shove movement of a caboose, 19 railcars and a locomotive across Front Street into the company’s Knoche Yard.” The impact crushed the passenger’s side of the vehicle, killing Heishman.

A shove movement occurs when a locomotive shoves cars backwards, requiring the conductor to be on the ground ahead of the shove to radio instructions to the engineer at the other end in the locomotive.

Torres also filed a crossclaim against the railroad for her alleged injuries, including headaches, PTSD, depression and anxiety. Both claimants argued KC Southern failed to provide adequate warning of the approaching train to westbound traffic on Front Street. They also claimed that the caboose needed reflective stripping on its side and a high-visibility marker on the knuckle. Both requested aggravating and punitive damages awards, but the jury, after deliberating roughly two and a half hours, sided with the defendant.

Hamer credited photographic and video evidence as well as expert testimony on accident reconstruction and driver conspicuity for “showing the caboose was clearly visible to a very careful driver, the crossing was brightly lit, and the driver had ample time to react and avoid the crash. Evidence was also presented that the railroad complied with operational rules, that markers and reflective stripping were not required for the caboose, and there was no evidence any such additions to the caboose would have prevented the crash.”

The railroad also presented evidence that Torres failed a field sobriety test for drugs two hours after the crash, though blood toxicology results were negative for drugs and alcohol.

Heishman asked the jury to award $3 million to $7 million in compensatory damages, while Torres requested $11.5 million in compensatory damages. Hamer said Heishman’s pretrial demand was $975,000, compared to a KC Southern $40,000 offer.

“This case needed to be tried,” Delaney said, citing the absence of a significant pretrial offer to his client as well as “disputes of fact” that included the conductor’s location as well as the presence and location of a flare near where Torres was driving.

The plaintiff’s strained relationship with the decedent was also likely a factor, he surmised.

“Seth admittedly had an estranged relationship with his dad, but he lost the ability to ever have a relationship with his dad,” he said. “It absolutely was a factor in the jury’s decision. Should it be a basis for awarding no damages? The courts have consistently said that you have to look not only at what the relationship was (when determining damages), you also look at the future relationship.”

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Defense verdict

Motor vehicle collision, wrongful death

Venue: Jackson County Circuit Court

Case Number/Date: 1916-CV21829/March 22, 2023

Judge: S. Margene Burnett

Plaintiff’s Expert: Brandon Ogden, Lockwood, Missouri (railroad operations)

Defendant’s Expert: William Neale, Kinetecorp, Denver (accident reconstruction)

Caption: Seth Heishman and Debra Torres (cross claimant) v. The Kansas City Southern Railway Company and Debra Torres

Plaintiffs’ Attorneys: Brennan Delaney and Summer Davidson, Langdon & Emison, Lexington

Defendants’ Attorneys: Sean Hamer and Paula Brown, Scharnhorst Ast Kennard Griffin, Kansas City (for KC Southern); John Carroll and Kevin Buchanan, Davis Bethune & Jones, Kansas City (for Torres)