7 July 2007
New Legal Track
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Jason Zsoldos, fitted with prosthetic arms, pauses where he
struck a train on his motorcycle one night in 2004, at a darkened rural rail crossing.
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Newbury Ontario - Railway tracks slice through the land
where Jason Zsoldos lives.
He grew up with the whistles of the engines and rumble of the freight cars on a Canadian Pacific Railway line back of his family's
home, a few kilometres east of Newbury.
By the time he was in his 20s and driving, he knew the many crossings between his place and his friends.
On Friday, 26 Aug 1994, Zsoldos had a few beers at a friend's house after work, then headed home on his motorcycle about
9 p.m. to clean up before going to a Chatham bar.
The sun had set as he drove, its light faded from the sky. The moon had yet to rise.
Zsoldos pointed his 1983 Kawasaki 440 motorcycle north on the flat and gravel McCready Road and sped up to about 80 kilometres an hour.
Up ahead was a CPR crossing, the same tracks that passed behind his boyhood home and only a few hundred metres from the farm where he
worked and lived now.
Through his helmet, he could hear the roar of his motorcycle and the crunch of tires on the gravel road.
Ahead, lay darkness.
Minutes earlier, three Canadian Pacific Railway engines pulling 58 freight cars, mostly from the U.S., headed east on the single tracks
that intersected McCready Road.
Sometime just after 9:15 p.m., the 35th freight car, unlit and travelling slowly, about 32 to 40 km/h, entered the crossing at McCready
Road.
So did Zsoldos.
The scraps of his bike were found 50 km away to the east.
His helmet was found on the south side of the tracks, about 200 metres from the road.
Zsoldos was dragged under the train and tossed on the other side of the tracks.
When he talks about the crash now, he often pauses to take long drinks of water.
"I am always warm. My theory is you sweat a lot through your hands and feet," Zsoldos says.
"I don't have those."
The train that dragged Zsoldos across the tracks tore off both arms and his left leg.
It left him, at 22, with an uncertain future.
"One day you think, Oh, I can't do anything. The next day you think, Oh, I will show them."
Zsoldos went to Siskind, Cromarty, Ivey, and Dowler, a London law firm where a team led by Jim Mays launched a lawsuit against the CPR.
After a 3 1/2 week trial in London last year, Justice Helen Rady ruled this spring that the CPR was largely to blame for the accident
and awarded Zsoldos $3.5 million in damages.
The case is a precedent, the first time a driver has won against a rail company over the safety of Canada's rural crossings, Mays says.
Statistics show about 150 people die or are hurt each year in Canada on rural crossings without lights, control gates, or bells, or
so-called passive crossings, Mays says.
"This level of carnage should not be acceptable," he says.
"Why this case is so important is that the judge here agreed with our proposition there is a hole in the inspection process, there
is a hole in the thinking of the railway companies and that hole is they never go look at these intersections at night."
Now, the CPR is appealing the decision.
Thirteen years after the accident, Zsoldos in some ways is still on the other side of the tracks, waiting.
Now 34, Zsoldos looks like a typical farm boy, almost - short hair, tanned face, big neck, broad shoulders, tall. He talks in the
matter-of-fact yet reserved way of those brought up on the flat farmland of Southwestern Ontario.
He does nothing to hide his prosthetic arms and hooks that replaced hands, or his prosthetic leg, but there are things he refuses to
talk about.
He doesn't dwell much on the past. He went to high school in Chatham, then tried business school in Toronto. He didn't like being
inside and he didn't like Toronto, so he came home and got a job working maintenance at the Newbury hospital and doing farm work.
He got a place to stay at one farm, rode dirt bikes and ATVs and got together with buddies on weekends. He had a girlfriend.
On his 22nd birthday, he and a friend headed to Canada's Wonderland for a lark, hitting the rollercoasters but avoiding the spinning
rides that make them sick.
That's the last memory he has before his life changed. Two days later, Zsoldos crossed the tracks.
Nothing about the crossing, mileage 39.56, looks much different than the other 16,000 rural crossings in Canada.
Laid down in 1889, the track slices the road at about a 45 degree angle. In summer and fall, crops grow on both sides of the tracks.
X-shaped signs, called crossbucks, mark the crossing. At the time of the accident, there was reflector tape on the fronts
of the crossbucks. A sign about 90 metres away advised drivers to slow down.
In daytime, it seems a routine thing to cross the tracks.
At night?
"It's a death trap," Mays says. "A black hole. You can't see there is a train in this intersection."
Backed by expert testimony, Mays argued at trial the lack of lighting, lack of reflector tape on freight cars, acute angle of the
tracks, and the presence of the crops all made it difficult to see a freight train in the crossing at night.
"Despite the known fact that 50 percent or more of the train traffic through the Windsor to London corridor runs at night, nobody
from CPR and nobody from Transport Canada inspects intersections at night," Mays argued.
The crash was largely Zsoldos's fault, CPR countered.
The CPR met all industry standards and regulations at the crossing, which had regular inspections, lawyer Steven Rosenhek argued.
The company determines where to put flashing lights and bells based on train and vehicle traffic, he said.
This crossing, which went 117 years without an accident, simply wasn't busy enough.
Zsoldos, Rosenhek said, had a history of "car racing" and "partying," with recent tickets for speeding and
following too closely.
He was, according to an expert called by CPR, legally drunk at the time. An expert called by Mays disagreed.
There was only so much blood left to test the night of the accident. One doctor told Zsoldos he had about 20 minutes of life left
inside him.
As he lay by the tracks, a couple drove by and slowed for the crossing. Their windows opened, they heard moaning in the cornfield.
Zsoldos knows the man who found him.
"It was pretty rough on him. I imagine it was a pretty gruesome sight."
Zsoldos doesn't recall it, but as he lay there he told his rescuers, "I think I broke my arm."
When he realized later what he'd lost, he wavered between determination and despair.
Other patients learning to use a prosthetic leg start off with a walker, then crutches, then a cane.
"Because I had no arms, I couldn't use any of that stuff. I just had to walk," he says.
Someone suggested he see a lawyer.
"I kind of figured off the bat, if I can run into the side of a train, somebody else can."
When he approached Siskinds, Zsoldos was warned not to expect much.
"I told him I don't think you have a big hope in this case, but we're going to give it a run because there is something here to
complain about," Mays recalls.
The more he got to know Zsoldos, the more determined he and colleague Emily Foreman got, Mays says.
"Jason is the kind of guy you go to the wall for," Mays says.
"I don't think Jason has spent even 15 minutes feeling sorry for himself," Foreman says.
The team's hopes grew in 1999 after a Supreme Court of Canada ruling took away historic protection for railways against negligence
liability.
"That really opened the door to Jason's case," Mays says.
In her ruling, Rady agreed with the CPR it had met all industry standards and regulations in 1994. She also agreed Zsoldos had some
alcohol in his blood that compromised his ability "to some extent."
Zsoldos was 25 percent to blame for the accident and CPR 75 percent, she found.
"The accident would have occurred whether Mr. Zsoldos was impaired or not, given CP's failure to take reasonable care to protect
motorists approaching this crossing," Rady ruled.
The presence of a train in the crossing at night is "very difficult to discern," she ruled.
"If CP had carried out an inspection of the crossing at night, it would likely have concluded that additional warnings were
necessary," she said.
The ruling contained "significant legal errors," Rosenhek says, of the CPR's appeal.
"Safety is a matter for all concerned, including the people who travel over railway tracks."
Since the accident, new rules for crossings have been developed. Several changes were made at McCready crossing during the trial.
They had nothing to do with the lawsuit, Rosenhek says.
What happened to you?
Zsoldos doesn't mind when children ask. They're curious.
But adults, "they just want to say, Hey I saw a guy who's missing two arms."
"It's rude. You wouldn't walk up to someone and say, You're fat or you're bald, what happened to you?"
So he tells people different stories.
"I got mauled riding by a bull. I was the chainsaw-fighting champion of the world and lost on my third
rematch."
Once a friend, a woman, jumped in.
"I caught him cheating," she said.
Zsoldos and his girlfriend broke up just before the crash. She came back, mostly out of sympathy, he figures. They broke up again. He
hasn't seen anyone steady since.
After he got out of hospital, he moved back to his mother's Cameron Road house near Newbury, where he grew up.
"I didn't do much for a couple of years there until I wrapped my head around the whole situation."
Then he got his driver's licence, a specially-equipped pickup truck and a job delivering fifth-wheel
recreational trailers to southern Ontario from an Indiana factory.
"I don't know how much longer I'll do it," he says now. "It is starting to wear on me."
Lately, pain has grown in his shoulder and back. His right arm was amputated below the elbow, his left at the shoulder.
"It's bad now. If I roll over on my right side, the pain wakes me up."
Can physiotherapy help?
"No," he says.
"There's probably nothing they can do. They told me it's probably going to wear out. You deal with it."
When he got the call from Siskinds that he won the lawsuit, he was out with friends.
"I couldn't be hooting and a hollering. I took it with a grain of salt... I was sure there was going to be an appeal."
If he ever gets any money, he'll move out and get his own place again. That means he'll need to hire a helper.
"I need quite a bit now," Zsoldos says. "I don't want to get into specifics."
Therapists have told him he'll need more help as his limbs wear down and his ability drops.
He's long past giving up now, on life, or the lawsuit.
"If somebody doesn't bring this to the attention of the railroad, or Transport Canada, or the public, nothing will change. It's
like we don't matter out here in the country," he says.
Zsoldos smiles wryly.
"Apparently, on Day 1 at law school, they teach that if you are a very big corporation and an individual sues you, you make it as
long and drawn out and painful as possible. Most people go away."
Why didn't he just go away?
"Well, my arms aren't going to grow back so... "
He leaves it at that.
RAIL CROSSING SAFETY
- Transport Canada, railways and municipalities are responsible for different aspects of crossing safety;
- After a review of the Railway Safety Act in 1994, the federal government created Direction 2006. Its aim was to halve crossing
collisions and trespassing by 2006, mainly by raising awareness of the risks;
- In 1996 there were 265 accidents at all crossings nationwide, 140 at so-called passive crossings without lights,
control gates or bells;
- In 2005 there were 269 accidents at all crossings, 72 at passive ones;
- The CPR began putting reflector tape on the back of crossbucks in 2003. Caught in a vehicle's headlights, the tape is supposed to
create a strobe effect that alerts drivers;
- A regulation requiring freight cars across North America to carry reflector tape was passed last year. Railways will phase in the
measure.
CROSSING NUMBERS
- 16,000: Rural crossings in Canada.
- 112: Average number of crashes a year from 1991 to 2005 at crossings without lights, bells, or gates;
- 236: Death toll at uncontrolled crossings from 1991 to 2005, an average of about 16 a year;
- 237: People injured at uncontrolled crossings from 1993 to 2005, an average of 18 each year;
- 100: Average number of injuries a year, major and minor, before 1993. After that, federal transportation board only
reported major injuries.
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