Railroad safety expert Charles Culver of Texas testified for plaintiffs in a trial involving a truck and train accident three years ago in Iron County, Mo. which killed the passenger and injured the driver.
In a trial that got under way in Madison County on Monday, Culver said he did not believe Union Pacific followed safety procedures.
"That horn should have been sounded long before it was," said Culver, a former Union Pacific safety spokesman.
But before testimony started on Thursday, attorneys for plaintiffs Misty and Guy Webb sparred with those representing Union Pacific about what could and could not be referenced by witnesses.
Out of jurors' view, plaintiff's attorney -- former Madison County Circuit Judge Nicholas Byron -- objected to the possibility that Union Pacific attorney Thomas Jones and other defense counsel would introduce testimony and evidence about a "scheme" that allegedly cost Guy Webb a job prior to the accident.
Misty Webb is suing the railroad as executor of James Webb Jr.'s estate, her father, a passenger who was killed in a truck that was struck at a crossing. Guy Webb, his brother, was driving the truck and was severely injured in the accident.
Guy Webb is a co-plaintiff seeking damages for his injuries.
According to testimony, Guy Webb left his employment shortly before the accident on the condition that he be fired or quit. His employer claimed he had been involved with cutting the prices on its compressor rentals.
Byron told Matoesian that the defense was trying to use that information to change the nature of the case.
"This again plays into the typical experiences I've had over my career where if you don't have something, you conjure up something," Byron said. "This is just another device to take this man and cut him up a little more."
Byron called the information a "ploy," and an attempt to "distort the entire aura" of the plaintiff's case.
He told Matoesian that the circumstances under which Guy Webb left his job were irrelevant to his client's claims against the railroad.
Jones countered that the evidence went to how plaintiff's expert Leon Grossman, an economist who testified to Guy Webb's lost earnings, came up with his numbers.
Matoesian said he believed the plaintiff had already stipulated to Guy Webb leaving his employment before the accident.
Matoesian said the jury could be told Guy Webb resigned in lieu of being fired but the defense could not go into the why.
He also had to make clear after more squabbling between the attorneys that in the Webb case, a "private crossing" did not mean the railroad had a different duty to the plaintiffs.
"There is no difference between the duty owed by the railroad to the public," Matoesian said. "I think that's perfectly clear. If that's error, you can appeal that. A crossing is a crossing. I don't know how many times I can say this. A crossing is a crossing."
The plaintiffs claim that the railroad allowed vegetation to obstruct the site lines along the track at the crossing and that its train crew violated safety rules by not sounding a horn prior to coming to the crossing.
The railroad argues that Guy Webb ran a stop sign at the crossing and that he contributed to the accident.
Guy Webb had also been a defendant in the suit. He settled with his niece in April over the railroad's objections.
In his testimony, safety expert Culver explained that engineers approaching a crossing that did not have clear sightlines should sound a horn at least 20 seconds before coming to that crossing.
He said that after reviewing the evidence, it appeared that when the engineer did sound the whistle, it was too late.
In his opinion, Culver said, that lack of warning played a large role in the collision.
"It's such a simple thing," Culver said of the whistle. "It doesn't violate anything, it doesn't cost anything."
Culver testified that based on his analysis, the crossing was especially hazardous because of a curve in the train tracks and the plant life cutting off a view of the road leading up to the crossing.
On cross examination, Culver re-acknowledged that he did not go out to study the actual accident site.
Jones poked at Culver's assessment that the train's engineer should have sounded a warning at the crossing because there was an "emergency" up ahead.
The train's engineer has testified previously in the case that he could not recall seeing vehicles use the crossing on most days.
"So, you believe that on a daily basis an emergency arose every time a train approached that crossing?" Jones asked.
Culver said that would not always be the case depending on circumstances.
Jones also asked Culver whether it would be reasonable for a train crew to expect that a motorist approaching a crossing would follow traffic rules.
"I would certainly hope that would be the case," Culver said, although he said he would not assume that a driver would do so.
The defense case began with an expert analyzing the train's version of a "black box," near the end of the morning.
Thursday's testimony saw numerous objections and at one point, Matoesian reminded the attorneys out of the jury's hearing to follow procedure and not to speak directly to each other.
The plaintiffs are represented by John Simon, Amy Collignon Gunn, Jon Carlson, Eric Carlson, as well as Byron.
Union Pacific is represented by Jones and Harlan Harla.
The case is Madison case number 08-L1139.