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Nebraska appeals court reverses lawsuit dismissal

Margery a. Beck, Associated Press

OMAHA, Neb. (AP) -- A jury should hear the claims of a mother who sued Union Pacific Railroad and the estate of her ex-husband over the death of their 15-year-old son in a collision with a train, the Nebraska Court of Appeals ruled Tuesday.

Mario Becerra III was killed, along with his father, Mario Becerra Jr., when the car the father was driving drove onto train tracks in December 2007, despite warning lights and an oncoming train's horn. . The train smashed into the car, sending it into a concrete signal base. Both the father and son were killed.

Mary Becerra sued the railroad and her ex-husband's estate, saying the Union Pacific Corp. unit was negligent for failing to keep a proper lookout and exercise due care and failing to remove the concrete signal base. The lawsuit also said Mario Becerra Jr. was grossly negligent for speeding and failing keep a proper lookout and yield to the train.

A Douglas County District Court judge first granted Union Pacific's motion to dismiss the claims against it, saying among other things that Mario Sr. was the sole proximate cause of the collision and that the concrete barrier was a condition — not a cause — of the collision.

The lower court later dismissed the claims against Mario Sr.'s estate, saying that state law in effect at the time of the crash allowed the father to be held liable for damages only if he was grossly negligent. The district court found

that Mario Sr. was guilty of ordinary negligence, but that there was no evidence that he was guilty of gross negligence.

On Tuesday, the appeals court reversed the dismissal, in part, saying a jury should decide the merits of Mary Becerra's claims that the concrete barrier constituted active negligence by Union Pacific.

The appeals court also found that a jury should decide whether Mario Becerra Jr. was grossly negligent in the accident.

"(W)e cannot say, as a matter of law, that Mario Sr. was not grossly negligent," the appeals decision said. "The evidence shows that Mario Sr. did not slow down or swerve prior to the collision, and neither the train's conductor nor the engineer saw brake lights illuminated on the vehicle."

Neither attorneys for Mary Becerra nor Mario Becerra Sr.'s estate immediately returned phone messages left Tuesday seeking comment.

An attorney for Union Pacific could not be immediately reached Tuesday for comment.