(Columbia, South Carolina – July 28, 2012)
Although seriously jeopardized by one judge’s dissent, a South Carolina Court of Appeals Wednesday affirmed an earlier decision by a trial court that a girl who was 12 years old when she suffered brain damage due to a car driven by her mother colliding with a CSX train consisting of two locomotives and 76 cars and travelling at 41 mph at the dangerous, unguarded crossing of Hill Road and CSX railroad tracks in Hampton County, SC on February 2, 2004 was not entitled to compensation.
The crash injured Tonia Colvin and her boyfriend, but the most seriously injured was her daughter Lillian Colvin, now 20, who had to be placed into a medically-induced coma, and a hole drilled into her skull to relieve pressure on her brain. Four years after the accident, Lillian ”continued to suffer from severe intellectual, behavioral and physical impairments” from the accident.
Plaintiff’s attorney Johnny Parker, representing Willie Homer Stephens, representative for the injured youth, argued that defendant CSX had erred through not following a South Carolina law that required activation of the train’s horn at least 1,500 feet in advance of a grade crossing, when the train’s event recorder showed the horn did not sound until the locomotive was 1,161 feet from the Hill Road crossing, which had no more than a standard, passive railroad crossbuck as protection, lacking completely any active protective equipment such as flashing lights, bells or crossing gates. In addition, attorneys contended that CSX had failed to remove vegetation and trees near the crossing which obscured the driver’s view of the train.
The South Carolina DOT was also a defendant due to contentions that SCDOT had not inspected the crossing, and that both the crossing sign and the stop line were incorrectly placed.
Appeal Judge Paul Short was a dissenter among the three-judge panel, saying that the original trial court had committed various missteps.
“We agree with Judge Short’s dissent and believe that certain errors which occurred during the trial warranted a new trial,” said attorney Parker, adding that his next step would be an appeal to the South Carolina Supreme Court.