On Friday, May 29, 1981, the nation's press reported an $8.5 million settlement paid by Consolidated Rail Corporation (Conrail) for a sixteen year old San Jose boy, Steven Throop.
Thirteen year old Steven suffered severe electrical burns on July 4, 1978 when he climbed upon a boxcar parked on Conrail's mainline in Washington, D.C. The accident happened within yards of the National Air and Space Museum and the Smithsonian Institute.
Accidents like Steve Throop's are not new to Conrail, a quasi-federal corporation created to handle freight by the authority of the Regional Rail Reorganization Act of 1973.
On average, 24 deaths/major injuries per year have been suffered by children as a result of Conrail's overhead electrical catenary system and the failure of the Federal Railroad Administration to demand appropriate warnings and fencing systems.
Despite Washington, D.C.'s strict rule of contributory negligence, which precludes anyone who contributes to their accident in any way from recovering, thereby insuring a virtual absolute defense for the railroad, why did Conrail pay?
On April 1, 1976, Conrail took over the Northeast's railway network comprising seven bankrupt railroads, headed by Penn Central, including all transportation properties, equipment and existing employees. Passenger service was delegated to a separate corporation, the National Rail Passenger Corporation, Amtrak. On May 19, 1976 Conrail contracted with Amtrak to operate the electrical catenary system which provides electrical power for electrically operated trains.
Virtually every employee of Conrail and Amtrak today began with either the Pennsylvania RR or with the Penn Central, the successor to Pennsylvania and New York Central merger in 1968. Accident such as the one permanently disabling Throop are not new to these employees.
Since the Northeast Corridor electrification project was completed with WPA money in 1934, children have been killed and maimed at a regular rate.
On April 20, 1970, the New York Times carried a fifteen inch story headlined "Measures Urged to Halt Electrocutions in Rail Yard." The story reported eleven cases of severe injuries and deaths to children 9 to 14 years of age who climbed railroad equipment and contacted the overhead catenary system. Penn-Central employees were quoted at length by the Times concerning the hazards of the catenary system.
On May 14, 1971, in Washington, D.C., 14 year old Preston Morris was killed and his rescuer, Metropolitan Police Officer Raymond Zilko, permanently disabled in an accident identical to Throop and which occurred at the same location as the Throop accident.
The National Transportation Safety Board, whose offices overlook the accident location, conducted an in-depth investigation of the May 14th accident. In its March 29, 1972 report, the NTSB stated: "There are few effective warning indicators in an around the accident area and no barriers that would discourage trespassers. Compounding the hazard in the area is a parking lot on which children congregate to play. There are no positive separation barriers between the railroad and the parking lot."
The report also noted that the sole sign, a faded "No Trespassing" legend stenciled on the catenary poles in the immediate vicinity of the accident, was "inconspicuous and marginally legible, did not contain specific warnings of the types of hazards present and therefore had no hazard warning effect."
Following the Morris-Zilko accident, no changes were ever made in the property by the railroad. No new signs or fences were erected by the railroad.
In November of 1971, the Department of Transportation, in a Report to Congress entitled "Railroad-Highway Safety, Part 1: A comprehensive Statement of the Problem" stated: "Catenaries are the overhead wiring system used to carry energy to electric locomotives. Catenary accidents may or may not involve trains. All of the catenary accidents in the sample data involved juveniles and all resulted in serious injury or death. Minor catenary accidents are rare because all of them result in severe electric shock, and there is a strong probability that a fall from the top of a boxcar will follow."
The report went on to conclude: "While there may be a general awareness of dangers associated with catenary systems as with power lines, few people outside the railroad industry are aware that the electrical potential is so great that shocks can result without actual contacting of the wire." [Emphasis added.]
The same report recommended installation of warning signs easily understood by juveniles which would indicate the potential hazard. "For example, a catenary warning could depict a stick figure on top of a boxcar below the catenary with a lightning bolt between the wire and the child," the report suggested.
In April 1975 the U.S. Department of Transportation presented its final report on the Northeast Corridor High Speed Rail Passenger Service Improvement Project, Task 10S, Grade Crossings and Fencings. The report contains the proposed catenary caution signs earlier suggested, which follow international signing standards.
The proposed signs designed by the Department of Transportation have never been adopted by the railroad.
On the other hand, Conrail and its predecessors have for years taken extensive precautions when their employees are required to work in the vicinity of the catenary wires. The railroad's Electrical Operating Rules, known as C.T. 290, prohibit any employee from getting upon, riding upon or working upon the roofs of any freight car or engine while it is under the energized catenary system.
The hazard potential is so extreme that "after the catenary system has been de-energized and grounded over cars on which persons are to engage in loading and unloading material, all such persons must be warned to regard all the overhead wires as energized and that they must not allow their bodies or material of any kind to come within . . . three feet of the catenary system . . . wires. . . ." according to the Electrical Operating Rules.
In April, 1978 Conrail was well aware of the open, easy access to its right-of-way at the accident location in Washington. Mr. Frank DiBonaventuro, Assistant Manager for Real Estate for Conrail, wrote the Washington, D.C. Redevelopment Authority concerning the railroad's property located between 6th and 7th Streets, S.W.: "Recent inspection of the subject property indicates you are presently subletting our property to a parking operator without the benefit of an agreement from Conrail," stated Mr. DiBonaventuro. "We are aware this condition existed prior to the conveyance from Penn Central to Conrail. . . ."
Aerial photographs taken during the spring of 1978 and on-site photographs taken following the Throop accident show that the parking lot in question, Paul's Parking operated by Paul Hinzman of Oxen Hill, Maryland, routinely parked cars, vans, campers and motorhomes adjacent to the catenary poles, within feet of Conrail's tracks.
Mr. Fred McGrath, who operates Almac Parking, a neighbor of Hinzman's lot, testified in deposition that during the summer months the number of children in the area increases because of the nearby museums, and that it is not uncommon to see trains parked on the railroad tracks. Employees of the parking lots reported that children would regularly play in the area where the trains were parked, they could be seen climbing on cars and other children had been hurt playing on boxcars at the same location.
On July 4, 1978, Steven Throop, age 13, visited Washington with family friends The group parked their motorhome at 7th and C. Streets, S.W. in Paul's Parking Lot, directly adjacent to Conrail's mainline. The railroad tracks at that location run near the National Air and Space Museum on the Capitol Mall. Trains were parked on the mainline due to the regular closing for the 4th of July holiday of the Potomac Yard in nearby Virginia.
Even though the electrical wires over Conrail's tracks were not in use that day due to the closing of the Potomac Yard, the electrical power remained on. At other locations Conrail on occasion would de-energize the catenary when a train would be parked on the tracks in order to avoid injuries to children known to paly in the area, testified Charles D. Shertzer of Stewartstown, Pennsylvania, a power director supervisor of the catenary system for Amtrak.
On the day of the accident, Conrail Police Officer Finice McCabe, noting the heavy 4th of July traffic in downtown Washington, D.C., specifically asked Conrail management to de-energize the catenary wires in order to avoid injuries to members of the public who would be on Conrail property to watch a fireworks display on the Capitol Mall. His request was denied because it was "regular operating procedure to keep the power on all the time." Joseph Gannon, Conrail tower operator testified.
The accident occurred when Throop and his playmate Robert Baum, age 13 of Lodi, California climbed a standing car which had been parked on the mainline waiting for the Potomac Yard to open the next day.
Baum stood atop the car and climbed down without injury. For Throop it was a different story. He climbed up next and contacted a 12,000 volt overhead catenary wire used to provide power for Conrail's engines.
The electrical current so severely cooked his right [major] arm and both legs that amputation was required. Dr. Carlos Silva of the Washington Medical Center Burn Unit reported that Throop's were among the worst burn injuries he had ever seen as Chief of Services for the burn unit.
Suit was filed in the United States District Court for the District of Columbia, before Judge Thomas A. Flannery, in 1978.
On May 27, 1981 Judge Edward Panelli of the Santa Clara County Superior Court approved an $8.5 million settlement, at the request of Throop's mother and guardian, Juanita Throop.
Notwithstanding this horrendous accident history, Conrail and Amtrak have never installed any warning signs at this or any other accident location.
That such precautions should be taken is evidenced by a special computer print-out prepared by the Federal Railroad Administration.
An exhaustive search of more than 3,000 pages of F.R.A. regular reports of train accidents failed to reveal any electrical accidents. This was unusual since all railroad accidents must be reported to the F.R.A. When F.R.A. officials were queried it was learned that no print-out had been made "because no one had ever asked for this information." Although it still remained within the F.R.A.'s computer bank.
A special program was written by mr. Stanley Ellis (at the request of Throop's lawyers) which showed that during the three and one-half years preceding the injury to Throop, 89 similar accidents had occurred. Virtually all involved children climbing on standing equipment. The average age was 13.5 years. All injuries resulted in death or catastrophic maiming. Each of those 89 accidents had been reported to the F.R.A. by the Penn-Central, Conrail and Amtrak under F.R.A. regulations.
At a minimum, one would expect Conrail and Amtrak to take some preventative steps. None have ever been forthcoming. Conrail press relations officer Wilson will report "off the record" that no changes will take place even after the Throop settlement.
This is not surprising since no efforts have been made to upgrade or to otherwise maintain the property from a safety viewpoint since its original construction in 1934, notwithstanding the federal government's reports and the continuing accidents.
This summer another ten to twelve children will be killed or maimed because Conrail has decided to pursue a corporate policy of indifference to the hazard presented to the public by the catenary system.
It has elected to defend lawsuits as they occur since wrongful death suits on behalf of parents for the loss of a child rarely present any extreme financial exposure to the railroad. The only real exposure exists in cases of catastrophic injuries such as suffered by Steve Throop.
"Conrail's position is that it was not liable and the accident was caused by a boy trespassing on their property," said Eben Crawford of Squires, Sanders and Dempsey in Cleveland, Ohio, according to The Peninsula Times Tribune. Crawford also stated in the same interview: "It was the judgment made by Conrail it was in the best interest to settle the case," [sic] refusing to elaborate further. That obviously is the case.
Conrail's corporate policy decision is identical to that made by Ford with regard to installing safety devices in gas tanks. Ford calculated, in the now famous Grush memo to the national Highway Traffic Safety Administration, that the $137 million cost of installing safety devices in gas tanks outweighed paying $49.5 million for settlements in cases of deaths and burns caused by unprotected tanks.
It took untold hours to investigate the facts behind Steven Throop's case. In light of the overwhelming evidence, Conrail agreed to settle the Throop claim for the sum of $8.5 million. While this may appear to be a large amount of money no one should doubt for a minute that Steven Throop would rather have two good legs and two good arms rather than the three stumps he is left with.
If this were to be the last such accident, then the settlement in Steven Throop's case would truly be a victory, but unfortunately that is not the case.
Children will continue to be killed and maimed by this arrogant giant because it simply lacks the social conscience to do what is right.
Conrail continues to hide behind antiquated laws, lumbering through the 20th century with all the concern of a 19th century robber baron.
Only if concerned citizens demand that their legislatures take action to require Conrail to erect the warning signs designed by the federal government and in high density areas maintain proper fencing, catastrophic injuries such as suffered by Steven Throop will be drastically reduced.
See also The Washington Post, page one, May 29, 1981, and The San Jose Mercury News, page one, May 28, 1981. AP and UPI national wire. In-depth feature, CBS Evening News, by Charles Osgood, July, 1981.
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