Lawsuit: Topeka railroad crossing where Carl Myles died saw 9 collisions in prior 30 years

Union Pacific Railroad trains were involved in nine collisions in 30 years at the crossing just northeast of Interstate 70 and MacVicar Avenue prior to the accident there that killed Carl A. Myles last July, his family says in a lawsuit.

They allege Union Pacific and Bettis Asphalt & Construction Inc. chose not to exercise "reasonable care" by installing lights and gates or otherwise warning the public prior to the crash that killed Myles, 67, of Topeka.

"Defendants Union Pacific and Bettis had control over the premises in question and each had the ability to remedy the condition," the lawsuit petition said. "In fact, all Bettis needed to do was to either move the roadway onto its property or pay for the movement of a natural gas line on their property and the federal taxpayers would have installed lights and gates at this crossing long before this collision."

The lawsuit petition demands a jury trial and seeks damages in excess of $75,000.

"Union Pacific is reviewing to determine next steps, and traveling motorists are always encouraged to stop, look and listen for trains when approaching railroad tracks," Union Pacific corporate communications manager Meg Siffring told The Capital-Journal Monday.

Bettis Asphalt & Construction declined comment.

Dump truck driver was killed at railroad crossing on August 2010

Manhattan-based attorney Nathan Karlin and Topeka-based attorney Joseph Johnson filed the civil suit petition May 21 in Shawnee County District Court on behalf of Myles' widow, Desiree Myles, and his children Donielle Myles, Dominique Myles, Cher'Londa Davis and Tywaun Gregory.

Defendants are Bettis Asphalt & Construction, Bettis Land Holdings LLC, Union Pacific Railroad Co. and Union Pacific employees Charles T. Bowling and James W. Heggie, whom the petition says were the engineer and conductor, respectively, for the train involved.

The lawsuit petition said Union Pacific reported collisions as having occurred at the same crossing in October 2016, July 2016, January 2016, October 2010, August 2010, April 2006, July 2002, July 1997 and October 1993.

Topeka Capital-Journal archives show the August 2010 crash killed the driver of a dump truck, 59-year-old Donald Akin of Silver Lake, while the October 2016 crash left a pickup driver feeling "lucky to be alive."

What efforts have been made to make the crossing safer?

The lawsuit petition called the crossing the "Bettis Crossing" and said it is used continuously by commercial trucks coming and going from Bettis Asphalt and another adjacent land user, Concrete Supply.

Bettis Land Holdings owns the land on the north side of the crossing while Union Pacific owns the railroad tracks and concrete crossing panels that make up the crossing, it said.

Federal funding available to install lights and gates at railroad crossings can be used only at public crossings, the lawsuit petition said.

The Bettis crossing is ineligible for federal funding because it has been designated as a private crossing because Bettis owns the land just to its north, that document says.

"The Bettis Crossing is so dangerous and has such a deplorable collision history that governmental agencies and government representatives have attempted to intervene on behalf of the public's safety, to transform this private Bettis Crossing into a public crossing and use taxpayer funds to install lights and gates," the lawsuit petition says. "As early as 2011, (the Kansas Department of Transportation) and Shawnee County proposed acquiring a small right of way on the north side of the Bettis Crossing so that the Bettis Crossing can be deemed a public crossing so that federal taxpayer funds would be available to install lights and gates at this unreasonably dangerous crossing."

The petition adds: "The installation of lights and gates at the Bettis Crossing could be accomplished using only Union Pacific and/or Bettis funds if either entity had a willingness to spend their own funds for these life-saving safety devices. Despite the loss of life and serious injuries at the Bettis Crossing, neither Union Pacific nor Bettis has contributed to the cost of installing these lights and gates or providing alternative means to warn the public of oncoming trains."

"Even more tragically for the Myles family and the safety of the Shawnee County motoring public, Bettis and other crossing stakeholders could not agree on who will pay for the relatively minor cost of moving a gas line in relation to the governmental entities' proposal for transforming this crossing into a public crossing," the lawsuit petition says. "As a result, the government entities' proposal to provide life-saving lights and gates, over a decade prior to the tragedy giving rise to this litigation, has gone nowhere."

Why do the plaintiffs think the crossing sees so many crashes?

Truck drivers are particularly at risk of being hit by eastbound trains due to "limited visibility because of the skewed roadway, a curve in the rail tracks to the west, and high-speed train operations," the lawsuit petition said.

Trains involved in the crash that killed Myles and eight of the nine prior collisions were all eastbound, it said.

Myles died July 18 when an eastbound train struck the passenger's side of the concrete mixer truck he was driving southbound across the tracks after picking up a load of concrete, exiting Concrete Supply and entering Bettis' property, the lawsuit petition said.

"He then approached the Bettis Crossing at a severe angle through the Bettis property and stopped at the signage at the Bettis Crossing," the petition said. "Carl Myles looked and listened for trains but did not hear or see any and as such began to proceed across the double mainline track crossing."

Myles suffered significant burn injuries when the eastbound train struck the concrete mixer truck he was driving, it caught fire and it rolled several times, ejecting him, the petition said. He was pronounced deceased at the scene.

The lawsuit alleges Union Pacific and Bettis showed an intentional disregard for public safety, provided inadequate visual warning to Myles, failed to report unsafe conditions, failed to inspect and repair an unsafe crossing and failed to provide adequate signs, signals and markings.

The lawsuit petition also alleges Union Pacific and its train crew members provided inadequate audible warning and failed to take proper steps to avoid the collision.

Contact Tim Hrenchir at threnchir@gannett.com or 785-213-5934.

This article originally appeared on Topeka Capital-Journal: Family sues over Topekan Carl Myles' death in railway crossing crash