As a courtroom litigator I have litigated many cases against the railroad industry, one of the leading causes of injury and wrongful death. In 1990, according to statistics from the Federal Railroad Administration’s Safety Division, there were 23,140 injuries and 1,297 fatalities. In Ohio, 77 people were killed and 881 injured during this same period.
This travesty continues for Ohioans, as evidenced by the two young students at Kent State University who were killed as a result of a railroad crossing accident occurring after the railroad refused to remedy a dangerous situation of which it had notice. The railroad had been warned many times by the city and other local officials of this hazard, but did nothing about it. As a result of their inactivity and the passivity of state officials empowered to take appropriate action, two more people have been added to the already swollen statistics of railroad injury and death.
The media commentary and the article in the Plain Dealer (Nov. 5) will bring the matter to light momentarily, but then a passage of time the reason for the deaths will be forgotten, as is usually the case in our crisis-oriented society.
Railroad law developed during the industrial expansion. Millions of acres were given to railroads 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 for railroad workers, but these are absolutely minimal. In many states speeding by a railroad is not negligence unless a speed is specified by a state-regulated agency.
It shouldn’t amaze you to learn that the regulations of horns, bells and whistles were not based on the ability of people to hear them, but rather are statutorily based on distance from the crossing. It is 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 Ohio, where the state officials who should work with the local agencies and public seem to be in bed with the railroads. This is based on my personal experience with trials of railroad crossing accidents. The practices of the railroad industry are more in accord with the pre-Civil War era with regard to the way they treat their employees and with respect to upgrading the crossings or methods of operating the railroads, than with modern industry.
Seniority of officials seem to determine what, if any, benefits are awarded for ideas that would make the railroad a better place to work and to protect the public. When the chain of command is breached in any way, the ax will fall and the employee who speaks out will be fired. Railroad employees understand that this is the implication.
All grade crossing accidents are theoretically preventable. New York City, for example, has no crossing accidents because all the hazards are removed by under and overpasses and therefore, the dangers are eliminated. The Snow Rd. crossing at Cleveland Hopkins International Airport was the most dangerous crossing in Ohio, according to a former governor, and that condition was remedied only after the court declared it a nuisance. Seven years and many deaths and injuries later, the overpass was built and thereafter no deaths or injuries occurred.
What is happening in Ohio and other states is that the railroads use 95% of their income for maintaining the right-of-way and only 5% for maintaining the crossings with minimal upgrading on any level.
Railroads should no longer be able to slaughter people and incur no responsibility. As an alternative to over- and underpasses, if crossing guards and warning systems were installed and maintained, there would be fewer and less serious injuries from crossing accidents. Across the country, many thousands of accidents and many deaths per year result from these circumstances.
The duty to avoid injury should not be placed on the driver and/or the pedestrian, but should really be made the responsibility of the railroad. Ohio law, until recently, had maintained 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 would be entitled to little or no recovery.
In a recent series of cases, railroads are being held to a higher responsibility than in the past. The term ultra-hazardous crossing is the definitive term in the modern state of the law presently which makes a railroad responsible. The standards of care have been partially changed by a recent case, decided in Summit County, tried by this contributor, which said in essence that the warning devices and gates are necessary when needed, and that is a factor to be considered by the jury in holding the railroad liable. (Ruzendall vs.Norfolk and Southern Corp.)
The rule is now a test of whether the conditions were such that an "ordinarily prudent person" would have acted similarly under the same circumstances, above and beyond whether the crossing was unusually dangerous.
In most states, including Ohio, failure to hold railroads responsible is the trend of law. This merely shifts the risk from the private sector and makes individuals responsible for carelessness and an uncaring attitude by the railroads who use our roads and encroach upon the state highway system without any kind of benefit to Ohio or other states where the roadway is used.
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, erosion and potholes that 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, buildings, roads, and where the road and tracks are parallel the driver can see only briefly before he turns into the crossing.
Reasonable care by the railroad should require the crossing engineers to anticipate traffic, weather, lighting conditions and conditions of the roadway, in designating safe 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 loud noises that do not allow oncoming traffic 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 about 80% of the 223,000 grade crossings throughout the country are not properly protected with appropriate warning devices. More than 40% of railroad accidents occur at crossings which have some form of protection such as flashing lights, barriers, whistles and so forth. Most crossings in rural areas have only a visual crossbuck.
Railroads must pay attention to the need for safety of the modern public sector and put their monopolistic private sector interests in the caboose, before further inquiry and death is caused by this negligence.