NEPHI, Utah More than 11 years after 38-year-old Shelly Elder was struck and killed by a train he never saw coming, his family can find some relief knowing he was not at fault, the Salt Lake City Deseret News reports.
A jury recently awarded at least $250,000 in damages to Elder's widow, Nan, and his four children after finding the city of Nephi 70 percent negligent for failing to cut down trees that blocked Elder's view of the oncoming train.
The jury found unnamed parties 30 percent responsible, with Elder bearing no responsibility in the fatal crash.
"They were elated," the attorney said of the family. "Eight jurors found that their father and husband had no fault in his own death, which we believed all along."
Elder was driving a dump truck across the train tracks at 300 West and Center Street in Nephi on May 27, 1998, at 8:15 a.m., when a Union Pacific train smashed into his driver's side door.
The train conductor testified that Elder had been looking north and failed to see the northbound train approaching from the south.
The attorney said even though Elder probably looked south, as well, seeing the train would have been nearly impossible, due to the large clump of 30-foot-tall trees growing out of an irrigation ditch.
The Elder family's lawsuit alleged the city of Nephi was negligent for failing to remove the trees.
The family also originally tried to sue Union Pacific, but that case was dismissed, as the trees weren't on railroad land, the attorney said.
There is still only a stop sign in the area, he said, with no flashing lights or wooden "arm" to prevent passage onto the tracks. However, the trees were cut down shortly after Elder's death.
The jury spent three hours deliberating after the five-day case before returning with their 70-percent-responsible verdict against the city.
However, under Utah law, because the unnamed parties, which could include the irrigation company, were less than 40 percent responsible, the court will enter judgment against Nephi for 100 percent of the damages, Young said. That doesn't mean a 30 percent increase in damages, however, due to financial caps.
The attorney said the parties had agreed to damages that exceeded $1 million, if the family won, but the financial caps could prevent the family from getting any more than $250,000.
(This item appeared in the Deseret News June 11, 2009.)
