A family’s cross to bear

The stories of Scott Demboski and Jason Fountain are eerily similar. Both were energetic, attractive men in their early 20s, just beginning to forge careers and adult lives. Both were loved for their senses of humor and gregarious personalities.

The Coast natives were killed at railroad crossings near their homes — Fountain at Hopkins Boulevard in Biloxi, Demboski at Bookter Street in Bay St. Louis.

They were two of the 25 people killed in train-car accidents in the three Coast counties from 1990 to 1994. They also were two of the 11 killed in that time at public crossings marked only with signs.

CSX Transportation Inc., the Jacksonville, Fla., railroad that owns the track on which both were killed, invariably blames the motorist in a car-train collision, as they did in these two cases. The railroad says motorists don’t obey traffic laws that require them to yield or stop at a crossing, and they try to beat the train. Often, the railroad is right.

But the families of the dead men believe differently. They say their sons were careful drivers, and that a set of warning lights or gates would have alerted them to stop and saved their lives — in essence, that the railroad and the governments that regulate it have a responsibility to make crossings as safe as possible.

“I realize it would cost a lot” to install lights, gates and bells at every crossing on the Coast, Fountain’s mother, Mary Ann, said in May, “but no money in the world can bring back a life.”

Death on the rails

The state recommended to Coast cities in 1992 that the crossings at Hopkins and 53 other streets on the Coast be closed for safety reasons. But the cities have taken no action on the recommendations.

Bookter Street, where Demboski died, was not on the list.

Demboski died Jan. 24, 1993. He was making tacos for dinner when he realized he didn’t have any cheese. He called his parents, who lived less than a mile away, and asked if he could come over and borrow some.

At 5:33 p.m., Demboski drove his 1987 Dodge pickup truck across the CSX tracks at Bookter. He evidently never saw the freight train, traveling eastbound at 45 mph. His parents think that if he looked, he didn’t see the train because the light of the setting sun blinded him.

The train pushed his truck a half-mile down the tracks. Police had to use the Jaws of Life to get Demboski’s body out. He apparently died instantly, of massive head injuries. He was 24.

Demboski’s widow, Kristy, moved back in with her parents after Scott’s death. A few days later, Tom and Daryl Demboski drove to Scott and Kristy’s home on Keller Street and found a plate of half-cooked hamburger meat for tacos still in the microwave.

Jason Fountain died 10 months later, on Nov. 20, 1993. Jason had plans to go out later that chilly night, a Saturday, and at 10:25 p.m. was on his way to the store to buy cigarettes.

Mary Ann Fountain, Jason’s mother, lived in Saucier at the time. She recalled, “My mother and Rachel (Averette, Jason’s girlfriend) knew before I did, and I didn’t have a phone, and I guess it was around 3 o’clock in the morning, a friend of mine and her husband drove up to my house, and she came in ...

“I could tell, you know, that she was really upset, and I said, ‘Oh my, something’s happened.’ When she came in, she said, ‘Mary Ann, I really don’t know how to tell you this other than to just tell you, before we take you down to your mom’s, but Jason has been killed.’

“And I said, ‘Jason who?’ That’s the only thing I could think, ‘Jason who?’ Not my Jason. My Jason is not going to die. And then when I got down to my mom’s, you know, it was my Jason.”

A westbound freight train hit Fountain as he drove Rachel’s old Buick across the tracks at Hopkins Boulevard in Biloxi, just down the street from his home. Like Demboski, Fountain, 22, apparently died instantly.

A few weeks later, the Fountains planted a 4-foot memorial cross between Esters Boulevard and the railroad tracks, beneath the Interstate 110 overpass and just east of the site of the accident. Some of Jason’s friends spray-painted graffiti on a concrete support column on the other side of the tracks.

“Trains killed my friend Jason,” reads one message, in green paint. To the left of that, in larger, black letters: “TRAIN’S KILLS PEOPLE.”

Nearly two years after the accident, the cross and graffiti remain.

“Jason was the type of person that you just expected him to be here forever and ever and ever. He was just not the kind of person you’d think would die,” his mother said in an interview May 25, in the shadow of the overpass under which her son was killed.

Why the cross?

“I think, to keep his memory there,” she said. Trucks rumbled overhead. The concrete shook. “And so that other people will know, like a message ...”

Said Keith Fountain, Jason’s cousin and close friend: “You’ve got to be careful.”

Legal maneuvers

The Demboski and Fountain families sought relief in court.

Scott Demboski’s widow, Kristy, sued CSX with three other people, family members of accident victims, in November 1993. The suit was based on four separate train-car accidents, of which Scott Demboski’s was one; in the four accidents, three people died and one was seriously injured.

The plaintiffs argued that in each case, the train was going too fast, the train crew wasn’t watchful enough for motorists crossing the tracks, and the crossing where the accident occurred was dangerous.

The railroad settled with the family members for an undisclosed amount of money on Feb. 13, 1995.

Mary Ann Fountain ruminated for months before she decided to sue. She did so, she said, on behalf of Jason’s memory and his daughter, Ryan, 14 months old when he died. Jason’s girlfriend, Rachel Averette of Biloxi, is Ryan’s mother.

“It was just something I felt I had to do, because I’m his mother and her grandmother,” Mary Ann said. “It just sort of reassures me that even though he’s gone, there’s one last thing I can do for him, and for her.”

She filed suit against CSX and the city of Biloxi in Circuit Court in Biloxi on Feb. 14, 1994.

In the suit, which is still pending, she alleges that CSX and the city conspired to maintain a dangerous crossing — featuring merely railroad-crossing signs, no lights, gates or bells. The danger was compounded, she claims, because bushes and bridge supports block motorists’ view of trains at Hopkins Boulevard. She also says the train crew did not blow the whistle, as CSX operating rules say it must, as the train approached the crossing.

CSX and the city responded to the complaint in April. Both said, in essence, that the crossing met state safety standards; that the train’s crew blew its whistle and obeyed company and federal safety rules; and that the accident was entirely Jason’s fault.

Wrote Tere Steel, the attorney representing Biloxi: “The cause of the defendant’s fatal injuries was his own negligence in failing to keep a proper lookout for his own safety ... (Fountain) was aware of the dangers of driving onto the railroad tracks under the circumstances that presented themselves and therefore assumed the risk thereof.”

In addition, the railroad and city are trying to deflect any liability in the case. CSX is using a legal ploy common in railroad-accident cases: The company claims that because federal money was spent to install the railroad-crossing signs at Hopkins Boulevard, the company cannot be held liable.

Instead, the railroad claims, the liability rests with the federal government or the state. In the early 1970s, Congress made states responsible for installing signals at crossings, and states in turn ordered local governments to install them — usually using federal money.

This defense is called the “federal preemption doctrine.” To get the relief they ask for, people have to file suit against the state or the federal government or both, and few have the means to fight such a daunting legal battle.

In most cases, those who sue end up working out a settlement with the railroad for a fraction of what they originally sought.

In the Fountain case, Biloxi claims it cannot be held liable because of the doctrine of sovereign immunity, which protects local and state governments from liability in private lawsuits.

The result: Jason Fountain, at least in the eyes of the railroad and city, shoulders 100 percent of the blame for his own death.

Mary Ann Fountain’s attorney, Ron Feder of Gulfport, has represented railroad engineers in similar cases. He says he has no sympathy for motorists who drive around warning gates, ignore warning lights and bells, try to beat a train and get hit.

But, Feder says, Jason Fountain didn’t do that, and the case is not as simple as the railroad would have you believe. It was night, and Jason’s windows probably were frosted. He probably had the radio on or a tape playing. The concrete pillars that support the I-110 overpass further blocked his view.

Feder concedes that perhaps Jason was more cavalier about crossing the tracks than he should have been, but rejects the idea that his death was a fair penalty.

“Unless we do a better job of protecting (crossings), we’re going to have an intolerably high casualty rate,” Feder said in May. “The railroad says, `Well, he should have been prepared to stop anyway.’

“But get this: This kid’s driving over this crossing every day of his life. To him, it’s not a hazard.”

Aftershocks

Jason’s death was hard on the family. Jason’s mother, Mary Ann, now lives with her mother, Mary C. Balius, with whom Jason was living before his death. The accident is too painful for Balius to talk about.

Of course, it still hurts for Mary Ann, but she is garrulous, almost effusive, when she talks about Jason, the details of his life or the circumstances of his death. Many of her sentences start with, “Jason was the kind of person who ...”

She and Jason’s cousin Keith Fountain, 27, describe Jason as outgoing, charismatic. Mary Ann’s fondest memory: She and Jason, two-stepping in the kitchen to the country music she adores and Jason tolerated. Jason tended more toward alternative rock. He wore a Rage Against the Machine T-shirt underneath his favorite black leather jacket the night he was killed.

The Fountains continue to wait for a resolution to the case, and try to get on with their lives. Ryan has some trouble. She senses that her father is gone, hidden somewhere beneath the earth at Swetman Memorial Cemetery in D’Iberville.

Ryan, who splits time living with her mother and Mary Ann, often begs Mary Ann to take her to the cemetery to visit Daddy, who used to read to her until she fell asleep.

Now, Mary Ann says, “you can take her blanket to bed with her, and you can read, and you can read to her every book that we have over there, and she won’t go to sleep.

“Or if she goes to sleep, she’ll sleep maybe for a couple of hours, and she’ll wake up out of a dead sleep, screaming, like she knows that there’s something not right.”

Ode to a flame

Scott Demboski’s father decided to create a monument to his dead son.

Since the day after Scott’s death, Tom Demboski has raised money for the Scott Demboski Memorial Soccer-Plex, to be built on a 12-acre site at the Hancock County Fairgrounds. The complex is about half-funded.

Scott was an avid outdoorsman and soccer player. That side of Scott is on display at the Demboskis’ brick home on shaded Highland Drive in Bay St. Louis.

The living room mantelpiece is festooned with stuffed ducks, some rare, all shot by Scott during his frequent hunting trips. The pool room is cluttered with soccer trophies, a stereo, boxes; hanging from one wall are pictures of Scott at 8, at 14, at 18, as a triumphant fisherman, a soccer player, a football player in mid-stride for eternity.

As a young man with a college degree from the University of South Alabama, Scott had started to settle into an independent life. After several jobs, one as a craps dealer at Casino Magic in Bay St. Louis, he had found a more solid job shoveling coal at the DuPont plant in DeLisle.

He had married his longtime girlfriend, Kristy Kidd, on Oct. 3, 1992, and they had settled into his grandmother’s old home on Keller Street in Bay St. Louis.

Tom Demboski had experienced a close brush with a train at a crossing in Bay St. Louis about a year before and warned Scott. “I warned him to be very careful ‘cause, gosh, you just can’t believe how close that train came, they’re dangerous, be careful, be careful.’

“But Scott didn’t worry a whole lot. He was kind of happy-go-lucky.”

The Demboskis say the Bookter Street crossing was marked only with railroad-crossing signs when the train hit Scott. The city has since added painted road markings and stop signs.

“It’s easy to get complacent if you cross that intersection every day of your life,” Tom Demboski said. “It’s easy to lose track of a train coming.”

Scott’s parents were not party to Kristy Demboski’s suit, but each has a strong opinion on why trains hit so many cars on the Coast, and what the solution is.

His mother, Daryl: “Crossing gates at every single crossing.”

Tom: “Slower speeds. They’re too damn fast.”

Daryl: “Tom, I think you can’t really blame the trains. They are a business.”

Tom: “Sure, they’re a business. But they’re a business to serve humanity.”

For several months after Scott’s death, Daryl said, the Demboskis “went around like we were in a fog.” One of the few things that kept Tom going was his work on the soccer complex.

When it’s done, Tom hopes, Hancock County youths will have a place to learn the sport Scott loved. That’s one major hope. The other: They wish the railroad or the government would close crossings, slow down trains, install more signals — something to prevent more deaths like Scott’s.

Train-car accidents have become a minor obsession for Tom. He keeps a scrapbook filled with newspaper articles about accidents that have happened in the 2 1/2 years since Scott died. It fills at least 10 pages, front and back, and Tom knows he probably has missed some stories.

They want something. They might find comfort in seeing dozens of soccer players sprinting around the memorial soccer complex, the way Scott used to sprint. They might find justice if railroad policy or national law is changed to force states or railroads to equip every crossing with signals.

All that might begin to help. But one wonders if anything would fill the hole, if whatever battle the Demboskis are fighting was lost when the train hit Scott’s truck at dusk on a sunny day in January two years ago.

“We’ve got pictures of Scott all throughout the house, and I feel that as long as I’m alive, he’s alive. Anyway, in my heart,” Daryl Demboski said.

“But your life is never the same after you lose a child. Never.”

This story was originally published March 11, 2017 at 11:00 AM with the headline "A family’s cross to bear."