Category Archives: Personal Injury

A Reduction in Grade Crossing Accidents

By Larry Henley

The nation’s railroad regulator, the Federal Railroad Administration, started publicizing grade crossing accident statistics through its Office of Safety Analysis in 1975. Since 1975 through May 2009, 213,814 grade crossing accidents have been reported by the railroads nationally which resulted in 20,421 fatalities and 79,469 injuries to Americans. During this same period 22,290 crossing accidents have occurred in Texas, the state with the most railroad mileage, resulting in 2,031 fatalities and 9,122 injuries.

In 1994 there were 626 fatalities reported from crossing accidents. The U.S. Department of Transportation in cooperation with the railroad industry established a goal to reduce grade crossing fatalities by 50% over the following decade. At the end of 2003, fatalities fell 47% to 332 and the number of collisions declined by 39%.

By the number of crossing accident fatalities rose 11% to 368 in 2004. In a statement to the House Committee on Transportation and Infrastructure in July 2005, Inspector General Kenneth Mead reported “most of the success in the FRA realized was due to picking low hanging fruit and additional gains will be harder to achieve!”

Mead told the Committee that much of this decline was due to the closure of about 41,000 railroad crossings along with the installation of automatic warning devices at about 4,000 railroad crossings which had a high probability for collisions. At $100,000 per crossing required to install automatic crossing signals, this represents approximately an expenditure of $400 million, all paid by taxpayer dollars. Mead also noted that nearly half of all crossing accidents that occurred were at crossings with active warning devices.

An audit of these statistics also revealed 21% of serious crossing collisions were not being reported – let alone in a timely way. 115 of 543 serious grade crossing collisions which occurred between 5/1/2003 and 12/31/2004 in which 116 people were killed, had not been reported to the FRA’s database.

Almost all of the information used to analyze crossing accidents comes directly from the railroad itself! These reports attribute 91% of all train-vehicle collisions to the “recklessness or inattentive behavior of the driver.” Recent court decisions and settlements have indicated differently. But, the law is quite simple: If you can see or hear a train, you must yield the right of way.

The investigation of crossing accidents must be upgraded. The FRA was criticized because they investigated only nine out of 3,045 crossing collisions in 2004, and 47 of the 376 serious crossing collisions between 2000 and 2004. Grade crossing laws must be enforced along with the requirement that train whistles are sounded sufficiently in advance to warn motorists.

Much more work is needed for this to be a true success story.

This article is reprinted with permission from the author, Larry Henley. Mr. Henley is a retired railroad employee and currently spends his time working to promote railroad safety. He is not employed by Bailey & Galyen.

One of the obstacles we have historically faced when trying to recover compensation for our clients involved in railroad crossing accidents is a legal doctrine called “federal preemption.” Both state and federal courts had restricted the rights of those injured and killed at dangerous railroad crossings to recover for their losses. Federal preemption, at least in theory, was intended to create a uniform system of minimum safety standards throughout the country. Sadly, the doctrine of federal preemption was corrupted to the point of giving railroads immunity from responsibility for their negligence.

A typical example of federal preemption at work in Texas involved a passive crossing, that is a crossing with only the white “X” shaped sign that says “railroad crossing”. Active crossings have flashing light signals and gates that come down when a train approaches. According to a body of case law developed by courts over a number of years, if federal funds contributed to the installation of the railroad crossing sign, also known as a crossbuck, then anyone hit by a train at that crossing could not claim that the railroad was negligent for failing to install lights and gates at the crossing. The so-called “inadequate signalization” claim was said to be federally preempted.

Now is a good time to bring up a dirty little secret regarding the railroads. You might be wondering why federal funds would be used to put up a sign at a railroad crossing. The truth is that the railroads spend little or nothing to install warnings, including lights and gates, at most crossings. Your tax dollars, state and federal, typically pay 90% to100% of the cost to install warning devices at railroad crossings. Incidentally, the CEO of BNSF was paid $12.6 million last year, and the CEO of Union Pacific was paid $9.8 million.

Although we have had no indication that railroads will start spending their own money to make railroad crossings safer, Congress passed an amendment last year to the Federal Railroad Safety Act that should once again permit those injured and killed at hazardous railroad crossings to sue the railroads for negligence. The amendment was included in the implementing recommendations of the 9/11 Commission Act, which the President signed into law last August. The amendment clarifies that preemption under the FRSA is limited and that state injury law claims may be pursued if the railroad violates federal safety standards, including Federal Railroad Administration regulations.

The FRA requires a crossing to be equipped with flashing lights and gates if one or more of the following hazardous conditions exists: (1) multiple mainline railroad tracks; (2) multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure movement of another train approaching a crossing; (3) high speed train operation combined with limited sight distance at either single or multiple track crossings; (4) a combination of high speeds and moderately high volumes of highway and railroad traffic; (5) either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions; and (6) a diagnostic team recommends them.

Why did Congress pass this amendment? On January 18, 2002, a train derailed in Minot, North Dakota and released extremely toxic ammonia gas from damaged tanker cars. Under the doctrine of federal preemption, those injured by inhaling the toxic gas had no cause of action against the railroad. There was no way for them to recover for their injuries. The 2007 amendment to the FRSA was inspired by the Minot disaster and the recognition that federal preemption had been perverted to immunize railroads from all responsibility for harm caused by their own negligence. The 2007 amendment to the FRSA has reopened the courthouse door to victims of hazardous railroad crossings and others injured when railroads are not reasonably careful in operating their business.

After someone has been killed in a train crossing accident, people often wonder how it could happen. Why didn’t the driver see and stop for the train? This question arises out of commonly held but incorrect beliefs about train crossings: deadly myths.

Myth #1: Railroad Crossing Accidents are Rare

The Federal Railroad Administration (FRA) defines “Highway-Rail Grade Crossing Incident” as any impact between a rail user and a highway user at a “designated crossing site.” A train hitting a car, truck, or motorcycle at a crossing would be a reportable “incident.”

Last year, 2,373 crossing collisions were reported to the FRA nationally, resulting in 2867 deaths and many more injuries. Texas was an unfortunate leader in those statistics, with 228 collisions and 17 deaths in 2008. As you consider these statistics, keep in mind that the accuracy of the FRA’s information depends upon the data collection and reporting processes of the nation’s railroads. The FRA admits: “It is not possible to identify reportable events that were omitted from a railroad’s submission.” In other words, the numbers could actually be even higher.

Myth #2: Drivers Can Always See An Approaching Train

Trees, vegetation, buildings and other structures along a road leading to a crossing can block a driver’s view of an approaching train. If the road intersects railroad tracks at a skewed angle, the driver might not be able to see an approaching train. Where more than one track is present at a crossing, a parked locomotive and/or rail cars on one track can obstruct the view of an approaching train on the other track.

The American Association of State Highway Officials recognized the importance of site distance to crossing safety as least as far back as 1954: “Site distance is a primary consideration at crossings without signals or gates. The condition at a railroad grade crossing is comparable to that of intersecting highways where a corner site triangle must be kept clear of obstructions.” Drivers must not only be able to see an approaching train, but have enough time to stop before reaching the track.

Myth #3: Crossing Collisions Occur Because the Driver Broke the Law or Tried to Beat the Train

Drivers in Texas approaching a railroad crossing equipped only with the familiar “Railroad Crossing” sign, known as a “crossbuck,” are required to yield the right-of-way to a train in “hazardous proximity” to the crossing. Although it might seem obvious, Texas courts have recognized that drivers must have a reasonable opportunity to learn of a train in hazardous proximity to a crossing before they can be expected to yield the right-of-way. As at least one court has noted, “[e]very railroad crossing is a place of danger.” However, Texas law recognizes that some crossings are “extra-hazardous.” A crossing is extra-hazardous if it is “so dangerous that persons using ordinary care cannot pass over it in safety” without some warning other than the crossbuck sign.

A crossing may be classified as extra-hazardous if a permanent condition (such as a building), or a temporary condition (such as parked railcars), obstructs a driver’s view of an approaching train. The railroad has a duty to use extraordinary measures to warn drivers of an approaching train at extra-hazardous crossings. Extraordinary measures might include gates, signal lights, bells, or a railroad employee waiving a flag. The railroad may be held responsible if the failure to provide such warnings results in a collision with a vehicle attempting to cross its tracks. In other words, a crossing accident may occur not because the driver was careless, but because the railroad was careless in failing to provide adequate warnings at an extra-hazardous crossing.

A Canadian National freight train crashed into a log truck in Perry County damaging nearly a dozen box cars and tankers filled with molten sulfur.

Mississippi Highway 198 was blocked for several hours following the accident.

Michael Pol, assistant to Southern District Commissioner Wayne Brown, said he lives near the scene of the accident and arrived shortly after the collision. The truck was southbound when the train hit it.

Pol said he contacted the Mississippi Department of Transportation rails division to report the incident. The Mississippi Department of Environmental Quality assisted in the cleanup of debris and spillage from tankers. According to Pol, molten sulfur is not toxic unless it catches fire, emitting an acrid smoke.

One boy was killed and another was hospitalized in West Virginia following a train accident. Authorities say a boy under the age of 14 was riding a bike near the Van Clevesville Road railroad crossing when he was hit by a train.

Authorities are still investigating the incident, but say the deceased boy was visiting from another area. The other boy was taken to the hospital. Police have not determined why the boys were on the track at the time of the accident.

MARC trains were stopped in both directions while crews cleared the scene.

Most passengers called for someone to pick them up. One passenger said, “I just want to get as far away from here as I can. I’m just sick over this. A child died.”