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The importance of investigating railroad crossing accidents

Author / Coordinator:  
Lawrence Landskroner
March 2007

Many police officers have had the unpleasant experience of investigating a railroad crossing accident. In addition to the human carnage found at the scene, officers know that these investigations are, by necessity, detailed and burdensome. The officer knows that he will be questioned by investigators and lawyers. Civil trials often result from railroad crossing accidents, making it necessary for the officer to be familiar with the facts and law.

Railroad law developed during the industrial expansion. Millions of acres were given to the railroad because of massive corruption and the outright control of state legislatures. In most states, localities have no control of the tracks going through their community. The only source of relief is with state agencies, which are often controlled by the railroads. The Federal Employees Liability Act set up some safety standards as they related to railroad workers, but these are absolutely minimal and are suitable for a horse and buggy society, rather than the motor vehicle society of today.

In many states speeding by railroad is not negligence unless there is a speed specified by a state-regulated agency. It shouldn’t amaze you to learn that the regulations of horns, bells and whistles were not based upon the ability of people to hear them. It is very frustrating for officials of towns and villages asking for protection at deadly crossings to be continually disregarded by both the railroad and the authorities that are supposed to protect them. This is particularly true in the state of Ohio where the officials who are to work with the local agencies seem to be in bed with the railroad. This is based upon personal experience of the writer with regard to trials of railroad crossing accidents.

The employment practices of the railroad industry are of the pre-civil war era with regard to the way they treat their employees. They never seem to want to upgrade the crossings or methods of operating the railroads. Seniority seems to determine what, if any, kind of benefits are to be awarded for ideas that would make the railroad a better place to work and to protect the public. Railroad employees historically are involved in the cast system and when the chain of command is breached in any way the ax will fall and the employee who speaks out will be fired. It is understood by the railroad employees that that is the case.

All grade crossing accidents are theoretically preventable. New York City, for example, has no crossing accidents because all the hazards are not at grade, and therefore, the dangers are eliminated. What’s happening here in Ohio, as well as in other states, is that the railroads use 95 percent of their income for maintaining the right-of-way and five percent of their income is used for maintaining the crossings with very little upgrading on any level.

Railroads should no longer be able to slaughter people and have no responsibility for this type of activity. If crossing guards and warning systems were installed and maintained there would be fewer and less serious injuries as a result of crossing accidents. There are approximately 5.000 serious accidents per year across the country, resulting in 1.500 deaths.

The duty to avoid injury should not be placed on the driver and on the pedes- trian, but should really be made the responsibility of the railroad. The law in Ohio until recently had been that in order to make a railroad responsible for someone injured in a crossing accident, the driver must get out of the car and look both ways. listen for the whistle, then get back into the car and drive across the crossing. If he gets into an accident. it can generally be held as a matter of legal responsibility that it would be the driver’s fault and he is entitled to little or no recovery.

There have been a series of cases recently, where railroads are being held to a higher responsibility than they have been in the past. The term ultra-hazardous crossing is the definitive term in the modern state of the law now that makes a railroad responsible. The courts are beginning to rule now that the test is whether the conditions were such that an "ordinarily prudent man" would have done the same thing. This is beginning to apply with the railroads, rather than whether the crossing was unusually dangerous. Failing to hold railroads responsible is the case in most states, including Ohio. This merely shifts the risk from the private sector to the public sector and make individuals responsible for carelessness and an uncaring attitude by the railroads who utilize our roads and encroach upon the state highway system without any kind of benefit to the state of Ohio or other states where there is usage of the roadway.

The major causes of crossing accidents are:

1. Crossing conditions; the wider the crossing, the longer it takes to clear; the warning time for standards used for crossing guards is not proper for multiple track crossings; the beds at crossings are seldom maintained; there is mud, gravel and potholes which lead to distraction and cause additional time to cross the crossing, creating a probable extension of danger in the danger zone.

2. Obstruction of view: crossings and their approaches are frequently obscured by bushes, trees, factories, roads, and where the road and tracks are parallel the driver can see only briefly before he turns into the crossing. Reasonable care on the part of the railroad should require the crossing engineers to anticipate traffic. weather, lighting conditions, and conditions of the roadway, in designing sale crossings and to make appropriate safety requirements for the operating engineers of the trains.

Train speeds and whistles are another factor in accidents. Engineers do whatever is necessary to make up lost time. They record their speed on train tapes that sometimes show 80 miles an hour when approaching crossings, especially in small town areas. Whistle posts are placed without regard to train speeds or whistle audibility at the crossings. They don’t consider the masking effect of local factory noise, diesel truck engines, school kids, motorcycles and other external influences on the ability to hear the whistle. They are old-fashioned. and modern warning devices should be placed at the crossings.

Lastly, there is inadequate protection at crossings. Warnings consist of such things as signs, crossbucks, flashers with bells and other devices that they should use to make crossings safer. According to The Department of Transportation of the Federal Building Railroad Administration, about 80 percent of the 223,000 grade crossings throughout the country are not properly protected with proper warning devices. Over 40 percent of the accidents occur at the crossings that have some form of protection like flashing lights, barriers, whistles and so forth. Most crossings in rural areas have only a visual crossbuck.

The officer investigating a crossing accident must take into account all of the foregoing. Unlike the run-of-the-mill traffic accident, it is likely that his investigation is not the last he hears of the matter. Careful consideration of all of the relevant facts will insure that justice prevails in the end.

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