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  • Wrongful death lawsuit to continue in court

By Myrna Trauntvein
Times-News Correspondent

The widow of a man killed at a Nephi railroad crossing stated in a nine-year old wrongful death suit that overgrown trees blocked her husband’s view of an oncoming train.
Shelley Elder was killed May 27, 1998 when the Juab County-owned dump truck he was driving was struck by a 91-car freight train at Nephi’s Center Street crossing. That crossing comes from the county fairgrounds where the county road department shed is located. He worked for Juab County for 17 years prior to the accident.
The Utah Supreme Court issued a 13-page ruling on Tuesday on the matter in answer to a lawsuit entered by Nan Elder, Shelly Elder’s wife. In her lawsuit she contended that Nephi officials should have trimmed the trees at the accident site and that the railroad should have maintained the crossing.
In a Utah Supreme Court decision, justices agreed that Nephi may have some “common law” obligation under its responsibility to keep roadways safe for travelers.
However, they opined, Union Pacific Railroad is free of responsibility in the fatal train accident. The justices agreed that Union Pacific had no control over the trees and, therefore, no responsibility to remove them.
They did, however, offer the opinion that since the inception of Utah’s statehood “municipalities owe a duty of reasonable care to ordinary people, and this duty extends to travelers upon their highways. The common-law duty of a governmental entity to safeguard those who travel its roads may, however, extend to visual hazards located on its land outside the bounds of the roadway itself.”
The justices wrote that Nephi City must show that the maintenance of the trees falls outside the common-law responsibility.
The justices agreed with a lower court judge’s decision to dismiss the claim against the railroad, but the ruling allows the Elders and their attorney, Allen K. Young, to attempt to prove that Nephi may have had a common law duty to maintain the view of the tracks from the intersection.
The case will continue in Utah’s 4th District Court.
Nan Elder sued the railroad and the city in 1999. A district court judge dismissed the negligence suit against the city and Union Pacific Railroad, ruling that neither defendant had a duty to assure that foliage did not block motorists’ ability to see approaching trains.
Nan Elder argued in her suit that because Nephi City owned the property on which the trees grew which ran parallel to the railroad tracks, the city and the railroad company were both liable.
 Elder charged that her husband would still be alive if not for the line of trees growing out of a ditch near the crossing. She said the trees obstructed the view and that the cluster of trees was on public property along the railroad tracks.
Nephi city cut the trees down soon after the accident, said city attorney Ben Hathaway, adding that the idea that the trees were a cause for the accident came from a witness at the scene.
“The city was not surprised that the lawsuit was filed,” he said. “It was a tragic accident, but we were surprised that they focused so intently on Nephi City, when Nephi Irrigation Company isn’t even mentioned in the suit.”
Hathaway said the land the trees were on is owned by Nephi Irrigation Company, which is not a defendant.
Elder’s attorney, countered that Nephi Irrigation Company only has an easement on the property and wasn’t responsible for the trees.
The land is within Nephi’s city boundaries, and that may give the city a common law duty because of a 1909 case, Morris v. Salt Lake City.
Quoting past case law allows for precedent, meaning that the court looked at the past decision for guidance on a question of law.
“It was the primary duty of the city to exercise a reasonable care to maintain the streets in a reasonably safe condition and to guard against injury to persons and property by removing or making reasonably safe any dangerous objects in the streets,” the opinion stated.
Young said factors that contributed to the accident were a “perfect storm.”
He said that Elder was at the perfectly wrong angle at the stop sign. When he looked south the train was blocked by trees. He then looked to the north and continued across the tracks. Two seconds later he was struck by the train.
The high court ruling made clear there is no “statutory” obligation on the part of the city or the railroad to have maintained the 300 West crossing, it did, in a unanimous ruling, send the lawsuit back to 4th District Court for the litigants to present evidence on whether the city had a responsibility to remove the line of trees.
“The common-law duty of a governmental entity to safeguard those who travel its roads may…extend to visual hazards located on its land outside the bounds of the roadway itself,” the Supreme Court said.