Deadly Pitfalls

A 1991 Texas law fails to protect travelers from dangerous open pits along the state's roadways

Every Tuesday morning, the diminutive great-grandmother with the white hair and glasses would leave her tidy house in the country, get behind the wheel of her 1992 blue Ford Taurus and drive the short distance into town to attend Bible class at Immanuel Lutheran Church.

She would pull up to the intersection where County Road 217 meets U.S. Highway 77, about three miles south of where Main Street crosses the main drag in the east-central Texas burg of Giddings.

On a particular Tuesday last spring, she waited at the stop sign while three cars flew past her on the four-lane highway. Then she moved her foot from the brake to the gas pedal and began turning the steering wheel to the left.

The collision occurred seconds after that.
A few minutes earlier and a few miles away, six women had piled into a blue GMC Safari van to head to work, just as they did every weekday morning. The women, roommates at a group home for mentally retarded adults, were learning life and job skills so that they could finally move out on their own.

The great-grandmother's car, which had moved into the intersection, collided with the right-side front of the van, sending the six women and their driver into a spin across two oncoming lanes and beyond the shoulder of the road. The van traveled through a narrow field of weeds, wildflowers, shrubs and small trees. And into an eight-foot-deep fishing pond.

The van flipped before it entered the pond, and came to rest with only its rear wheels spinning above the murky water. Below the water, the van's horn blared. Despite heroic rescue efforts by folks working nearby, five of the seven women trapped in the van would die in the accident. The cause of death was drowning.

Four months later, Lee County District Attorney Ted Weems would file papers charging the great-grandmother, 84-year-old Elsie Nitsche, with criminally negligent homicide, a felony that carries a possible jail sentence. Now her attorney says she struggles with the thought that society thinks she intended for those women to die.

Violent though the impact was, the accident should have resulted in bumps, bruises and perhaps broken bones. Not burials.

If the state Legislature had done what it intended to do and if a state regulatory agency had done what it is supposed to do, the fishing pond would have been filled or had a guardrail that would have prevented the van from plunging into the water.

And the five women would not have drowned.

In 1991, the Legislature passed a law requiring that barriers be erected between roads and certain types of open pits that are within 200 feet of the road's edge. The law was in response to a 1989 accident in the Rio Grande Valley town of Alton that killed 21 Mission junior high and high school students. The teenagers drowned after their school bus was hit and went off the road, landing in an abandoned quarry 20 feet from the roadside. At the bottom of the unfenced 40-foot-deep chasm was 12 feet of water.

"We passed the law so something like that accident would never happen again," said former state Representative Eddie De La Garza of Edinburg, who sponsored the legislation.

But the law, the Texas Aggregate Quarry and Pit Safety Act, missed the mark. Doomed from the outset, the narrowly focused law was the work of a quarry operators' association interested in repairing the industry's reputation, which was sullied after the Alton crash.

As a result, the law is more effective at shielding the industry from a recurrence than at addressing the bigger problem of open pits along roadsides. Most of those hazards, including the pond in Giddings, are not remnants of abandoned quarries but rather the legacy of highway construction in Texas.

The law, however, is not under the auspices of the state's highway agency. Instead, it falls to the Railroad Commission, which regulates surface mining -- a tenuous tie, for certain. And the agency, which is run by three elected commissioners, seems to expend more energy trying to get rid of the pit safety program than trying to make it work. It has never aggressively challenged the Legislature's indefensible budget for the program, which at $51,891 is about half of the $92,217 appropriated yearly salary of a single railroad commissioner.

"The Legislature does not give this program a high priority," Railroad Commissioner Charles Matthews said. "That's pretty obvious, because we're not going to be able to do very much with the amount of money they give us to run it."

With only one inspector to track down pits that violate the law, the commission figures at least 40 years will pass before the agency can get around to requiring barriers for 1,800 dangerous pits it conservatively estimates lie along Texas roadsides. The commission currently knows the location of hundreds of dangerous pits that are spread across all parts of the state in both rural and urban counties.

But it had no idea that the pit in Giddings existed until it got word that five women had died in it.

"This accident falls at the Railroad Commission's doorstep," De La Garza said. "The commissioners should quit whining and admit that they have not done what they are supposed to do."

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