(The following story by Lana. F. Flowers was published in the January 10 issue of the Bentonville Morning News.)
BENTONVILLE, Ark. — A jury likely will have to decide whether railroad employees distributing bottled water or a stray puppy caused a toddler to be hit by a train and die near her Gentry rental home.
Benton County Circuit Judge David Clinger held a hearing Thursday on pending motions in the wrongful death lawsuit filed by the family of Azelie Jazmin Paz against Kansas City Southern Railroad and the Paz family’s landlord, Justin Tennant.
The case is set for jury trial on Jan. 21 and likely will last three days, according to attorneys.
Miguel Paz is the administrator of the estate of Azelie Jazmin Paz, his daughter. Azelie died April 19, 1999, after being hit by a Kansas City Southern train.
The Kansas City Southern railroad tracks run adjacent to the Paz residence at 301 S. Collins St. in Gentry. Tennant owned and maintained the property and refused to build a fence between the home and the tracks, according to the suit.
Kansas City Southern employees enticed children to the tracks by inviting them aboard train engines and cars and giving the children bottled water, according to the suit.
Miguel Paz claims Kansas City Southern was negligent because the railroad failed to watch for people on its tracks, failed to safely maintain its premises and failed to remedy an unsafe and hazardous condition.
Kansas City Southern denies that the railroad was negligent or responsible for the accident or Azelie Paz’s death.
The railroad’s attorney, Rex Terry of Fort Smith, filed motions to limit testimony on whether railroad employees enticed children to the railroad tracks by giving away bottled water.
In turn, the Paz family’s attorneys, Vince Chadick and Chadd Mason, filed motions to limit testimony that witnesses saw a person described only as a “young Hispanic girl” chasing or playing with a black and white puppy near the railroad tracks at various times.
Terry argued Thursday that Paz chased her puppy onto the train tracks and then was hit.
Clinger took the motion to limit testimony about the girl and the dog under advisement, until attorneys narrow the testimony.
Terry then argued that, if scarce evidence regarding the little girl and the puppy cannot be used at trial, the jury should not be allowed to hear scant evidence of railroad crews handing bottled water to children.
“The crew that operated the train in this incident categorically denied that they handed out water bottles,” Terry said.
Chadick said there are witnesses who say that Kansas City Southern train crews, over the course of several months, distributed bottled water to children.
Despite enticing children to the railroad tracks, Kansas City Southern and its employees did not erect barriers between the train tracks and nearby homes, Chadick noted.
Terry said he knows of no Arkansas laws that specify railroad tracks are an attractive nuisance.
Clinger said he understands the argument is that Kansas City Southern made the railroad tracks an attractive nuisance by inviting children to get water.
“It appears the railroad had a good intentioned but misguided effort to curry good will with the local children, encourage them to come down to the train and give them treats and bottled water,” the judge said.
Clinger did not issue a final ruling Thursday, and he likely will rule on whether the bottled-water distribution is evidence once the trial begins.