Facts

On Sept. 26, 2006, at 10:20 a.m., former defendant Bowen Presley was driving a commercial flatbed truck for his employer, former defendant American Pallet Inc., near a railroad crossing when he rear-ended Marc Berkowitz, a non-party to the action, and hit plaintiff Karin Velting, a 43-year-old bookkeeper, in the westbound lane of traffic. Berkowitz and Presley were both traveling east on Highway 120 at speeds of approximately 55 mph. At the time, David Hio, a signal maintainer for defendant Union Pacific Railroad Co., was testing crossing equipment, consisting of cross-bucks and flashing lights. There were no crossing arms at the railroad crossing.

Berkowitz was approximately 500 feet from the crossing when Hio activated the flashing red lights. He applied the brakes and came to a complete stop for five seconds prior to the collision. Hio testified he was performing his monthly testing at the north control box and waited for traffic to clear in both directions for over 500 feet before activating the lights. He then walked approximately 50 feet west of the control box to check the lights, when he saw Presley lose control of the truck. He ran from the crossing and only heard the collision.

Mike York, a percipient witness, was traveling east on Highway 120 at the time, when Presley passed him on the right, in a short merging lane from Jack Tone Road to Highway 120. He estimated Presley's speed to be at least 65 mph. The accident occurred a minute or two after Presley passed him on the right. The plaintiff sued defendant for motor vehicle negligence and vicarious liability.

PLAINTIFF'S CONTENTIONS:
The plaintiff testified she took no action to stop as she approached the crossing, despite seeing the red flashing lights. She was traveling at approximately 55 mph when her vehicle collided violently with Presley's truck.

DEFENDANT'S CONTENTIONS:
Former defendant Presley contended he applied the brakes when the crossing lights came on briefly, but proceeded down the street for two to five seconds when the lights turned off. He started to skid when he applied the brakes and the truck fish-tailed. He rear-ended Berkowitz with the front driver side of the truck while the rear driver side slid into the westbound lane of traffic, hitting plaintiff.

Specials in Evidence

$90,000 to $105,000 $25,000

Damages

The plaintiff sought past and future general damages for pain, suffering, and disfigurement.

Injuries

The plaintiff suffered multiple injuries, including a grade 3-A open left elbow olecron process fracture, open reduction, internal fixation, chronic elbow pain, scarring, flexion contracture, closed comminuted interarticular fracture of the radial styloid and radial carpal joint, post-traumatic arthritis, limited function of the right wrist, impairment of sensation in right thumb, scarring of right wrist, injections of steroids and anti-inflammatories, knee injury, anterior contusion, chondromalacia of patella/femoral joints, brain damage and permanent short-term memory loss.

Result

The jury returned a defense verdict. Presley and American Pallet settled the case prior to trial.

Deliberation

four hours

Poll

10-2

Length

seven days