(The Star-Telegram posted the following story by Martha Deller on its website on September 24.)
CLEBURNE, Tex. — It was a day like countless others as Patricia Lowery drove her children home from school along County Road 404 in Alvarado where she had lived for 40 years — first with her parents and later with her husband, James.
It is the details of a few moments of that day, Dec. 4, 2001, at the Union Pacific Railroad crossing near Lowery’s home, that are at the center of an $80 million lawsuit being tried this week in 18th District Court.
The Lowery family is suing Union Pacific and Trinity Materials, which leased a side track near the crossing where Lowery’s van was struck by a 102-car Union Pacific freight train. Her 9-year-old son, Conner, was killed and Lowery’s spine was severed, leaving her paralyzed from the shoulders down.
The van was pushed almost 80 feet into the family’s yard, where Lowery’s father, Epifanio Maldanado, pulled out Conner and his 11-year-old sister, Bianca.
Conner died in his grandfather’s arms. Bianca was treated for minor injuries after she and her mother were transported by helicopter ambulance to Fort Worth hospitals.
In opening statements Tuesday, even Union Pacific attorney John Proctor of Fort Worth acknowledged that Conner’s death and Patricia Lowery’s injuries were the result of “a tragic accident.”
But Proctor and Robert Greenberg, an Arlington attorney representing the Lowery and Maldanado families, suggested two different explanations for the accident.
And Trinity Materials attorney Dan Boulware of Cleburne said his client is not to blame — no matter which scenario the 10-woman, two-man jury believes.
Patricia Lowery, who is expected to testify later, does not remember what happened after she stopped at the side track before approaching the main track where her van was struck, the attorneys agreed.
In fact, James Lowery testified, for three weeks after the accident, his wife had no memory. He said she repeatedly asked him how her children were even after he told her that Conner had been killed.
But Greenberg said he would present witnesses and evidence to show that Patricia Lowery stopped at the side track where workers were unloading railroad cars.
Greenberg said the parked railroad cars and trucks obstructed Lowery’s view, preventing her from seeing the train that struck her as she moved about 20 feet forward onto the main track. He blamed the railroad for not having crossing gates or sounding a train horn at the crossing.
But Proctor said that Jackie Gregor, the train’s engineer, and other witnesses will testify that Lowery caused the accident when she stopped at the side tracks and then drove onto the main track, even though Gregor sounded the train’s horn for 34 seconds while approaching the crossing.
In a videotaped deposition, neurosurgeon Gregory Smith testified that the accident severed Lowery’s spinal cord, paralyzing her from the shoulders down. Smith said Lowery will never recover sensation or use of her lower body, and the paralysis could spread.
Psychotherapist Nancy Glass, who began treating the Lowery and Maldanado families in August 2002, said the entire family suffers from post-traumatic stress syndrome. After becoming a nurse to his wife and mother to his daughter, James Lowery dealt with his loss by becoming angry and frustrated, Glass said. He is now taking medication, she said.
Bianca Lowery, now 13, has repressed feelings about losing her brother after fighting with him that day and will have future problems if she doesn’t deal with her loss, Glass said.