In this life there are not many certainties. In the complex society in which we live events beyond our control may occur suddenly, unexpectedly, sometimes violently. These events alter our lives and the lives of those whom we love.

Some of life's tragedies are the result of others acting negligently, carelessly or with malice.
The more grievous injuries are those caused by another whose actions or whose failure to act responsibly are willful, wanton or malicious; behavior demonstrating a reckless disregard for the rights of others; consciously pursued as a reckless, predetermined course of conduct. This latter was the cause of the death of Mark Brown, 17 years of age, son of Herman and Barbara Brown.

Mark, on the 22nd day of July, 1979, was driving his father's truck on an assigned mission when he entered the intersection of the railroad tracks and Laurel Street in Prescott, Arkansas. The first opportunity, because of visibility obstruction, that Mark would have had to see the oncoming train was 2.5 seconds before the crash. The train would have been 180 feet from the intersection, traveling at 45 miles per hour, moving across this abnormally dangerous intersection before it could be seen.

Mark Brown lingered three weeks in the hospital before his death.

This fatal collision which took Mark Brown's life was not the first fatality that had occurred at the intersection of the Missouri Pacific Railroad and Laurel Street in Prescott, Arkansas.

Barbara Brown, as administratrix of the estate of Robert Mark Brown, brought suit against the Missouri Pacific Railroad asking for compensatory and punitive damages on behalf of the estate and the parents and siblings of the deceased. The case was tried to a jury in April, 1982 in the Texarkana Division of the Western District of Arkansas. Judge Franklin Waters was the presiding judge.

In the trial of Brown v. Missouri Pacific, the following issues were addressed and resolved:

1. Was the Laurel Street Railroad intersection abnormally dangerous?

Tom Bryant, Missouri Pacific's grade crossing signal engineer, participated as the railroad company's representative in a diagnostic team survey of the four unprotected crossings in Prescott, Arkansas in 1976. This survey included the Laurel Street intersection. The members of the survey team found, and Mr. Bryant concurred in the findings, that the four intersections, including the intersection in question, were dangerous and recommended that they all either be protected or closed.

Mike Selig, a civil engineer with the Arkansas Highway Department, in charge of the traffic safety division which is concerned with grade crossing protection, testified that this particular crossing's hazard rating, where Robert Mark Brown was killed, was in the top ten percent of all crossings in the State of Arkansas in terms of its likelihood of grade crossing collisions. In his opinion the crossing was dangerous and should have been closed or protected. He further testified that the crossing's hazard rating was 20.12 which is twice that which the State considered would justify flashing lights.

Dr. __________ Heathington, Ph.D., a civil engineer and director of the Transportation Center of the University of Tennessee and former associate administrator for the Traffic Safety Program of the National Highway Transportation Administration, United States Department of Transportation. He testified at length about the hazards and difficulties of safely negotiating this crossing where an excess of thirty of the railroad company's trains pass each day at speeds up to and in excess of 45 miles per hour.

2. Did the Missouri Pacific Railroad have a duty to install active warning signals at the Laurel Street crossing?

Under Arkansas law, a railroad has a duty to provide active warning devices at, "abnormally dangerous crossings."

It was practically uncontradicted that the Laurel Street crossing was an abnormally dangerous intersection. The hazard rating system established by the Arkansas Highway Department was a valid method of assessing the relative risks of grade crossings in the state. This index is computed and maintained on computer read-outs for all the crossings in the state and is based on five elements:

a. the number of vehicles that cross the crossing;
b. the number of trains;
c. the number of tracks that are present;
d. the accident history; and
e. the particular local conditions

The Missouri Pacific Railroad Company had knowledge that Laurel Street crossing was abnormally dangerous and operated its trains over the crossings up to and exceeding 45 miles per hour through the town of Prescott, over a period of years.

The Missouri Pacific Railroad had knowledge that the fatality rate in Prescott was higher per capita compared with all the rest of the Missouri Pacific systems between Little Rock and Texarkana combined, a territory which includes 400 miles of track.

Mike Gorman, assistant train master for the railroad in this area, testified that Prescott's fatality rate was alarming.

The railroad had been asked repeatedly (since the end of the Second World War) to install warning devices at all four of these unprotected crossings in Prescott.
Thus, not only was it clear from the evidence that the crossing in question was dangerous, but it was just as clear that Missouri-Pacific knew of this fact. There existed a hazardous condition, giving rise to a duty, on the part of the railroad, which was not discharged.
Not only did the railroad company have knowledge that this Laurel Street crossing was abnormally dangerous, but it had knowledge that the installation of active warning systems, signals, lights, gates, would reduce the certainty of injuries over a period of time given the number of trains, the speed they were traveling, and the number of vehicles daily crossing the intersection.
Dr. Heathington testified that studies conducted by the National Cooperative Highway Research Program, sponsored by the American Association of State Highway and Transportation Administrators, determined that flashing lights reduced the likelihood of crossing accidents, by a factor of five, over crossings which only had crossbucks. This was obviously a dramatic assertion that the installation of lights can reduce accidents by one-fifth of the otherwise expected level.

Tom Bryant, the railroad's chief grade crossing signal engineer, also testified that these warning devices in fact do decrease accidents. Moreover, he testified that the federal program promoting the installation of signal devices had in fact already reduced accidents by forty percent.

3. The Missouri Pacific Railroad made a policy decision not to install active warning signals:

Having knowledge that the Laurel Street crossing was abnormally dangerous, of the fatalities that had occurred at the crossing, that it should be closed or active signal devices installed, what action did the railroad take? Why did the railroad not respond to numerous requests over the years to fulfill its obligation to the traveling public by providing protection at this and the other dangerous crossings in the city of Prescott?
Again, Tom Bryant, the railroad's chief crossing signal engineer, testified that the railroad had not installed any significant number of active warning devices at its own expense since the early 50s. He testified, in effect, that the railroad would not install active warning devices at a crossing system if the railroad agrees that it is dangerous and deserves protection, unless public funds pay for it.

Mike Gorman, a railroad company representative, at a Kiwanis meeting in Prescott was asked why the railroad did not install active warning devices at grade crossings such as those in the city of Prescott. His response was that it was cheaper for the railroad to pay the personal injury claims than to install and maintain the devices.

4. Would a claim for punitive damages lie in this action for wrongful death?

What are the moral and legal justifications for punitive damages in a civil action?
Perhaps the most respected among moral and political values in this nation is freedom. This includes the individual's right to be free of unwarranted interference from both the state and other citizens. The Bill of Rights protects the former type of freedom (liberty). While the private law, including the law of torts, protects the latter. Freedom is the most fundamental right of the individual human being. Each person is a morally special autonomous creature who has the ability and right to control his own destiny and a duty to do so in a manner respectful of the similar right of others. Each person, therefore, is entitled to be treated as an end in himself who should not be used to his detriment merely as a means to accomplish someone else's ends. The individual's dignity derives from his membership in the human family.

The Missouri Pacific Railroad having knowledge that the Laurel Street intersection was abnormally dangerous; that the visibility of an approaching driver was limited; and having knowledge that appropriate warning devices would substantially reduce the hazard to the traveling public, continued to operate their trains through the intersection and through the town of Prescott at speeds up to and exceeding 45 miles per hour.
The need for reduced speed and adequate warning devices were crucial to safety at Prescott's crossings. Mr. John Peterson, train engineer, testified:

"There is a helpless feeling that an engineer, or anyone in the cab of a locomotive, has. You can't deviate from your direction. You are committed. You are on a set of rails. You can't turn the locomotive. Once you apply the brakes in emergency position, that's all you can do, there is nothing left."

In this situation and in this environment the railroad did not install gates or adequate warning devices because it was cheaper to have the lawsuits than to put up the gates and warning devices.

The railroad company failed to carry out its moral and legal duty to reduce the hazard to the traveling public because it was cheaper to fight the lawsuits. The railroad's failure to take corrective measures was not a violation of the criminal law. The railroad could not be indicted or prosecuted for this willful and reckless and persistent disregard for public safety. The only recourse would be for a jury, representing the conscience of the community, and acting under the instructions of the court:

1. To compensate those injured as nearly as they could be compensated;
2. To punish the wrong doer for his willful misconduct; and
3. By its verdict to set an example to the named defendant and to others that this kind of reckless and willful disregard of the rights of others would not be tolerated in a free society.

Mark Brown, 17 years old, lost his life. He survived for three weeks following the crash. His estate incurred funeral and medical expenses. Mark's parents lost a devoted son. Brothers and sisters lost their younger brother. This close family relationship was severed.
The jury having considered the evidence awarded compensatory damages totaling $80,000 to the family of Mark Brown and his estate and awarded $62,000 to his estate for punitive damages. The award of punitive damages was approximately that which it would cost the railroad to have substantially reduced the risk of this fatality.

The amount of this award to the family and estate of Mark Brown flies in the face of and contradicts the "scare" tactics of those who would abolish, supposedly through "tort reform", our civil jury system and the right to recover for punitive damages for willful, wanton and flagrant disregard of the safety of others.

Some advocates of "tort reform" are inundating the commercial media and the Internet with stories about excessive verdicts and runaway juries that are destroying the competitive edge of our free enterprise system

Very few punitive damage awards are returned by juries. Juries generally reflect the common sense, the decency and sense of fair play dominant in American society. Even when punitive awards are returned by juries, they are reviewed by the trial judge and by appellate judges. Witness the case of Nellie Mitchell.
The right of a citizen to recover punitive damages for injuries inflicted maliciously, intentionally, or by a reckless disregard for his safety, elevates the jury to a position where it can serve as an instrument for the pursuit of equal justice for all in our free society.
Our experience in over fifty years of trial practice tells us that punitive damages, where justified by the facts, serves substantially a legal and moral purpose.

1 Barbara Brown, Administratrix of the Estate of Robert Mark Brown, deceased, et al. v. Missouri Pacific Railroad, (W.D. Ark.) Civil No. 80-4020. Lawyers for the Brown Family were James Bruce and Phillip McMath, The McMath Law Firm, P.A.