- Courtesy Pioneers Museum
- One of the Cog’s early engines serves as a reminder of the railway’s history, dating to 1891.
Officials didn’t mention they’ve settled two lawsuits and face another alleging serious injuries of patrons, and that a 2016 complaint claimed the Cog’s practice of locking train doors posed a risk of trapping passengers while forcing conductors to cling to “the outside of the car like Spider-Man to close and lock the doors.”
That practice was changed in late 2016 at the behest of the Federal Railroad Administration, although the Cog (also known as the Manitou & Pikes Peak Railway) isn’t subject to FRA safety inspections, according to documents obtained by the Independent through a Freedom of Information Act request.
In fact, the Indy was unable to identify any federal, state or local agency that has oversight of the 127-year-old tourist train, meaning the Cog’s owners apparently report to no one when its passengers are injured or maimed, such as in a case of “catastrophic injuries” suffered by an Arkansas woman in 2012.
Passenger and employee safety hasn’t gotten much attention during debate over a 50-year tax subsidy agreement between Manitou Springs and the Cog, owned by multibillionaire Philip Anschutz’s Oklahoma Publishing Co., which also owns The Broadmoor hotel.
Asked about the Cog’s safety record, Manitou Springs Mayor Ken Jaray says, “I don’t have any knowledge of that. I’m not aware of any safety issues.”
And there might not be any need for concern. If the deal goes through, the Cog would sink nearly $100 million into new tracks, a new depot and several new trains, according to an Oct. 19 letter to Manitou from Gary Pierson, president and CEO of Oklahoma Publishing Co.
According to the Cog’s balance sheets obtained by the Indy, the railway reported net income of $3.5 million in 2016, the most recent year available, it’s highest earnings in at least a decade.
“Our company has many options to invest this money in other businesses that we operate around the globe that would provide a much greater return,” Pierson’s letter says. “But ... this decision isn’t just about dollars and cents. The Cog is an important institution to Manitou, the State of Colorado, and because it is ‘America’s Mountain,’ the entire country.”
From 2012 to 2016, a period during which the Cog carried roughly 1.4 million people to and from the summit of Pikes Peak, three passengers filed lawsuits against the railway.
The first was filed in July 2014 by Madeline Epps of West Memphis, Arkansas. Epps’ lawsuit says she and family members went to Manitou Springs to ride the Cog on July 16, 2012. Once aboard, Epps realized that her insulin level was abnormal and she decided not to ride. She and her mother asked the conductor to open the doors and let them off, which he did. Epps’ mother stepped out of the train with no problem. But as Epps exited, “without any warning, the train started to move, causing the Plaintiff to fall in between the train and the station abutment,” the lawsuit says.
Related Cog Railway and Manitou Springs make a deal for tax subsidies: Railroaded? Opinions split on Cog deal
According to the suit, Epps suffered “catastrophic injuries,” some of which are permanent, though it doesn’t elaborate. On Dec. 15, 2014, the case was dismissed with prejudice, which often suggests a settlement was reached. Epps’ attorney, Robert Anderson of Colorado Springs, declined to comment, saying, “There’s a confidentiality clause, and that’s probably all I can tell you.”
Marcia Mitchell of Divide says in her lawsuit she went to the Cog station in Manitou to ride the train on March 7, 2015, and slipped on a sheet of ice. Her wrist was broken in the fall, which also aggravated her back pain, the lawsuit says. Filed in January 2017, the case was dismissed with prejudice on Jan. 7, 2018. Her attorney, Tim Fields of Colorado Springs, tells the Indy via email, “Unfortunately we cannot comment.”
The third case, filed in August by Sam Bartley, alleges that on Dec. 17, 2016, the “train’s braking system engaged, causing [Bartley] ... to be violently tossed around the train and flung approximately 15 feet across the train car, causing severe injury to his left shoulder.”
Bartley was aboard the Cog as part of a volunteer program that featured holiday characters riding the “Santa Trains” during the Christmas season, the lawsuit says. Bartley’s character was “Minstrel Sam,” and he engaged passengers in singing Christmas songs while playing his guitar.
“Due to the configuration of the train and its sound system,” the lawsuit says, “Bartley was required to walk up and down the aisles of the train so that he could be heard by the passengers and so that he could engage as many of the paying passengers as possible in the spirit of the occasion.”
His shoulder injury required “significant surgery and resulted in permanent and persistent symptoms,” according to the lawsuit, which notes he also suffered injuries to his ribs, chest and ankle. Medical expenses have topped $54,000, and his “physical impairment” will extend “into the foreseeable future,” the lawsuit says.
Bartley alleges the Cog failed to adequately maintain the train, which led to the brake failure, noting that before the incident the Cog “had not been closed for maintenance in 10 years.” Moreover, the Cog hadn’t been inspected for safety prior to the brake failure, and hadn’t maintained a program or policy for inspecting the train, the suit alleges. Hence, the lawsuit states, the Cog rail car “was not in compliance with the FRA [Federal Railroad Administration] Passenger equipment Safety Standards and should not have been allowed to be in service on the day of the incident.”
In its answer to the lawsuit, the Cog denies many of the allegations, including those regarding inspections and lack of maintenance, and states that possible defenses include Bartley being partly to blame and that the damages may have been caused by actions of a third party. A trial is scheduled for Oct. 1, 2019.
Bartley’s attorney, Martin Jackson of Conifer, declined to comment on the case.
- Courtesy Pioneers Museum
For a 10-year period, the Cog reported net income totaling $22.8 million.
Although balance sheets are required to be filed by tourist railroads, PUC spokesperson Terry Bote says via email, “Since the PUC has no safety or operational jurisdiction over the Manitou & Pikes Peak Railway, its annual report is for informational purposes only.” Bote also says the Cog falls under the jurisdiction of the Federal Railroad Administration for inspection purposes.
But that’s not exactly the case. Though the FRA exercises jurisdiction over tourist trains, it doesn’t oversee, monitor or inspect those that run over narrow-gauge tracks (less than 24 inches) and those that are insular, meaning trains that don’t cross roadways or waterways or intersect with other public conveyances. Documents obtained by the Indy through FOIA show the federal agency considers the Cog an insular rail line.
However, FRA regulations do apply to safety standards for bridges crossed by trains, and the Cog traverses a 30-foot-long bridge on a remote portion of track that allows road access to a hydroelectric plant. When the bridge was inspected by the FRA in September 2013, a report noted a “Failure to adopt bridge management program.” But the report recommended no violation and said the Cog’s “written notification to FRA of remedial action is optional.” Likewise, in October 2014, an FRA inspection resulted in no violations but made recommendations to improve the Cog’s bridge program, including record-keeping.
Those are the only two inspection reports provided by the agency in response to the Indy’s records request. An email among FRA personnel dated Aug. 22, 2018, noted there have been no FRA inspections of the Cog for at least 10 years.
That said, the agency works with tourist trains to develop emergency preparedness plans in light of several high-profile crashes, such as those of the White Pass & Yukon and Arkansas & Missouri trains in 2014 that injured a combined total of 67 people, Michael Ramsey, FRA passenger rail safety specialist, wrote in an email to undisclosed recipients on Oct. 5, 2016, regarding the Cog.
In addition, FRA officials’ correspondence with one another states the agency can inspect and take emergency action if operations of an insular rail line “pose an imminent hazard of death or injury,” though there was no such inspection of the Cog included in the documents provided to the Indy.
The complaint also claimed Department of Transportation rules forbid locking passengers into transit and school buses but that the complainant was unable to find any evidence the Cog is subject to the same rules.
“It seems that no government entity has jurisdiction over safety on the Cog Railroad,” the complaint said. “They can do whatever stupid thing they want. It does not make any sense. In fact it is totally insane.”
The complaint triggered internal discussion among FRA officials, with train safety official Daniel Knote calling locked doors “a serious safety issue.” As Ramsey outlined in an email, “[person’s name redacted] confirmed that it has been the [Cog] policy for the last 2 years to lock the doors. This was after 2 separate events with one resulting in a serious injury when a passenger opened a door and attempted to jump from the train as it was leaving the depot. This resulted in legal action. Evidently, it was determined that locking the doors was the best course of action to prevent this type of injury in the future.”
The FRA urged the Cog to change that practice, and on Oct. 18, 2016, the FRA’s Ramsey advised colleagues via email the Cog would install “a temporary/visual barrier with a rope/chain and sign to notify passengers to not exit unless in emergency.” Then, under normal use, Ramsey noted, the barrier would be removed and the unlocked door then opened by a crew member so that passengers could exit. Ramsey termed the proposal “a reasonable solution.”’
Another FRA official, Veronica Chittim, stated in a Dec. 7, 2016, email to other FRA personnel that while it was “encouraging” that the Cog had updated its policies regarding the doors, the FRA should bear in mind that it still had “emergency order authority” to inspect and address safety emergencies at the Cog “if those operations pose an imminent hazard of death or injury.”
But there have been no communications between the FRA and the Cog since then, according the records obtained through the FOIA request.
Beyond the FRA’s authority, the Indy could find no other agency that inspects or regulates the Cog.
- Pam Zubeck
- The Cog closed in late October 2017 and might not reopen, depending on the outcome of negotiations and a lawsuit.
Bill Thoennes, spokesperson for the Colorado Department of Labor’s Office of Government, Policy and Public Relations, reports that the Colorado Passenger Tramway Safety Board has no jurisdiction over the Cog.
Cog officials didn’t respond to repeated requests for comment about the suits, the deal with Manitou and the Cog’s safety record.
Mayor Jaray says the proposed deal, to be voted on by Council on Nov. 7 and 21, would require a $1.25 million payment from the Cog to cover lost revenue from the 5 percent excise tax on ticket sales while the train is shut down. The Cog also would give the city $500,000 toward improved parking.
The new deal, revamped from the June 26 version OK’d by Council, would give the city $34 million to $68 million in excise tax payments over the next 50 years — more than the previous deal’s sum of $29.7 million. Approval of the second pact would render the first one void.
Still, that’s a reduction in those taxes from where they are set now, saving the Cog what the city estimates is up to $9.5 million over five decades. The city also would give the Cog a pass on use tax for materials to rebuild the attraction.
Pierson states in his letter that despite all that, the train wouldn’t break even for at least 15 to 20 years, at which point another investment of roughly $30 million would be needed to replace three trains.
So why would the Cog agree to pay Manitou more?
“We kept at them,” Jaray says, noting his 35 years spent as a trial lawyer. “I would say we wrangled that out, because the Cog was willing to come back to the table. I’ve never seen a company come back to the table after it did a deal because someone had second thoughts about it.”
But the deal isn’t without detractors. Manitou residents John Shada and Brenda Gillen filed a lawsuit in August seeking permission to circulate a petition to force an election on the 50-year deal. The case is pending.
A group of citizens is also campaigning for “a fair deal.” A full-page ad appeared in last week’s Pikes Peak Bulletin. It was paid for, at full price, by the Committee for the Defense of Manitou. “Don’t railroad Manitou. Let the voters decide,” the ad says, stating that 50 years is too long and that “the Broadmoor ... does not need our community resources to be successful.”
John Weiss, owner of the Indy and the Bulletin, was an early proponent of asking for a better deal for Manitou, including in editorials in the Bulletin. However, Weiss, the Indy and the Bulletin are not involved in the citizen lawsuit or in the campaigning citizens group (see sidebar above).
For Pierson, a partnership with Manitou is crucial to a decision to rebuild, which is pending. “Without confidence in our relationship and the financial incentives agreed to, however,” his Oct. 19 letter says, “we will again have to assess the risk/rewards of such an exciting but risky project.”
The following pages are the results of Indy's Open Records Requests: