"Railroad Crossing Cases - Preparation and Trial Of"

by Lawrence Landskroner

Most trial lawyers who try crossing cases think that the railroad has got everything going for them -- and that it is impossible to win cases against the railroad. The reason for that attitude is that the railroad has established a pre-conceived notion that they have all the marbles, control the witnesses, and are not responsible for "the accident" that happens as a result of the person crossing the track running into their railroad train. A certain attitude must be acquired by plaintiff's counsel. The first thing that he or she should think of is that: 1. The railroad is granted a franchise, license, or a right-of-way agreement from the state and the public. To maintain that license they have two duties:

1. To operate their trains at a reasonable rate of speed, considering all of the conditions, and to maintain a safe crossing.
   
   
2. The railroad track crosses a public road and has an easement, or right-of-way granted to it by the public and the State.

The public has as much right to the roadway as the railroad has to use its rails and utilizing the crossing. In order to prepare a case properly, one must have the following concepts and in gathering evidence and material for your trial. (1) the primary and most important aspect of your trial is the investigation that you will do before the trial, (2) the preparation for the trial and (3) the trial itself.

This article will allude to the preparation and investigation aspect, as it applies to what must be done in order to properly prepare the case. I will further try to illicit some philosophy that I think is quite germane and is most important in conditioning the jury and to be in the right frame of mind in awarding damages against this egregious, monolithic giant (the defendant railroad corporation); this egregious defense whose only purpose is to make money for their shareholders. A corporation that refuses to spend money in the maintenance of safety portions of their right of way coupled with their negligence in maintaining a dangerous crossing certainly could be the subject of a punitive damage allegation in your pleading. Their defense must be anticipated. The concept will be that the railroad really can't do much about stopping an accident and the accident was the fault of the driver (more on this subject later). The railroad has the duty to make that crossing safe. Trains cannot stop as a car can with all the weight that they are carrying, and their singular obsession for transporting materials, making money, and with no regard for other safety considerations. This indicates a calloused disregard for the welfare of the citizenry. One must show that they really don't care about the vehicular traffic crossing the railroad tracks when called to account, they do whatever is necessary in compiling the facts and providing the testimony to maintain their defense.

There is an extremely high degree of probability, in the preparation and trial of this case, that you won't be able to get any witnesses. Or, if you can get witnesses, they are going to be sparse, rare and unavailable.

Where a motorist approaches a crossing and the train car collision occurs, most of the occupants of the car are killed. Most of the eye witnesses, namely every member of the train crew, the support people, the people investigating the accident for the railroad and even the police (in pre-conditioned hearsay comments) will all say that the train blew its whistle at the appropriate whistle post (1340 feet down the right of way from the crossing) and continued blowing it until the collision. They will postulate that the engineer did everything he could to prevent the accident. They will create the concept the motorist pulled right on the crossing and either tried to beat the train across or ran into the train in a careless and negligent manner. The implication, of course, is that this accident happened without any fault on the railroad and therefore no one can be blamed.

The first thing that should happen is an on-site investigation. You then should seek out potential witnesses, do a complete survey as soon a possible of everybody that lives near the crossing and try to find people that use the crossings frequently. Ask the people about signs and find out about obstructions. Find out whether there have been other collisions at the crossing. Talk to all the witnesses; try to use feet per second to indicate an imagery of extreme speed by a very large and heavy piece of equipment.

In talking about speed, it is easy to determine because the formula to determine miles per hour in terms of feet per second is 5,280 divided by 3,660. For example, 60 miles per hour equals 60 x 5,280 divided by 3,660 which would equal 88 feet per second. When you consider that type of speed mechanism, it conjures up an awesome speed. Now the next step, of course, is after you survey the loquis in quo is to gather information, everything you can (by way of interrogatories from the railroad). That would include and not be limited to any investigation done by any employees made in the ordinary course of business.

The locomotive engineer has to file a report. Everyone else involved in the collision that was on the train also has to fill in a report and turn it in to the railroad. The investigative staff on the railroad, or private police, or claims people will be out there investigating the railroad accident. They will file reports in the railroads which will be found in the railroad's archives. Recommendations and comments will be made which would be useful for your depositions.

You must try to obtain copies of and carefully listen to the radio transmissions between the people involved calling the accident. You must obtain the speed tape which would indicate the source of the train, where it came from, where it was going, and the speed at the time of impact. There will be a report by the conductor, the road master, the foreman (who would be responsible for maintaining the crossing), the public project engineer, the division superintendent, the division signal officer, the installers and maintainers working under his supervision. The public engineer is required to make recommendations for improving the crossing within his jurisdiction. There should be traffic engineering studies.

The public utilities commission would have documentation on the crossing as well as the federal government. There would be maintenance records for specific negligent acts or commissions regarding automatic warning devices. The city or the country where the accident happened, whether it be the city municipality, or whether it be trustees of a non-incorporated entity would have records and correspondence between the railroad regarding that particular crossing. You can obtain information on the frequency and use of the crossing, prior accidents, history of the crossing, upgrading and maintenance of the right of way records (which require the railroad to send a car at a speed not greater than 35 miles per hour up and down the right of way at least three times a week), and reports submitted in writing to the railroad. They are obligated to report any abnormalities or anything that might cause an accident.

The Public Utilities Commission of Ohio would have certain directives which would apply, and there are statutes in the state code, the revised code, setting out information that has to be submitted to the state regarding maintaining or upgrading the crossings. There are state laws requiring that the operator of the crossing must maintain the crossing in a certain manner. It must be done in accordance with the certain specifications put out by the Department of Transportation in Ohio (5561.16 of the Revised Code). There is a duty on the part of the county superintendents to inspect all crossings in his county each month. If there are any abnormalities, he has to notify the local railroad supervisor and then this will be submitted to the district office of the public utilities commission railroad section. They would have a duty to see about maintaining the crossing. If these crossings are not repaired within a reasonable period of time, the railroad project sections of the bureau of external contracts have the duty to enforce contracts for further action. A copy of that action would be sent to the bureau of maintenance. Highway traffic maintenance would be under the responsibility of the deputy district director of the highway department who is responsible under the department of transportation for that particular item.

Preliminary Investigations To Be Done

• Send a letter to the ODOT, Division of Rail Transportation, on railroad annual reports, ask them for the latest, up-to-date reports (since 1990 through this date) as published in their annual report forms otherwise known as R-1.
• Send a letter to the Ohio Director of Transportation requesting an up-to-date standard for planning, design and construction and adjacent property to railroad right-of-ways, effective from 1992 to this date.
• Send a letter to the Public Utilities Commission, asking them for whatever railroad information is available insofar as the maintenance of the right-of-way and what standards are applicable.
• Set up a human factors expert to comment on the impact of involving the facts of the accident involving signal systems, lights, bells, gates, time of activation. Must be activated to accommodate the fastest train, the slowest motorist, the worst weather; anticipating the worst case.
• Check out what official warnings there are in your accident.
• What prior accidents have happened here? Talk with the city, talk with the township governing body.
• Check the visibility. Do a sight approach to the crossing. A topography view and/or take an aerial shot.
• Find out about school buses, frequency of the use of the crossing.
• Run a test on the sensory or perceptual approach to the crossing.
• Find out about the driver's vehicle, the height of the car, the weight of the car, the visibility. Did they have the radio on or off, windows opened or closed?
• Investigate the Doppler Effect and be prepared to discuss it.
• Discuss the illusion of velocity and size. The larger the object, the more slowly it appears to be moving.
• The tracking view, the fact that this is effected by contour, color, and as a result of the contribution of the reflective system verses the less effort required by the voluntary system and slower velocity.
• Reflective system or optokinetic nystagmus -- has to do with the degradation of vision from retinal image movements.
• There are other things that effect the view of an oncoming train; the tracks, the ties, the ballast, the stones, the rows of telephone poles and trees, what the effect of monocular cues have. An increase the perceived distance of the train and would thus contribute to the over-estimation of the safe time of arrival. This deceptive geometry indicates if two objects are going in a straight line, their positions relative to the other remain constant, but if the train is going slower, there usually is an over-estimation of a safe time of arrival.
• Three factors then should be investigated: (1) the inverse relationship between velocity and size, (2) the illusion of perspective and the rate of change of the expansion pattern serve to increase the unjustifiable confidence in the ability to judge the time that the train is approaching.
• One must consider the reaction time for unexpected events. There is 2.5 seconds to react and during that period of time the vehicle will be going 13.4 meters a second or 48 kilometers per hour. (that has to be converted to feet).
• One must consider the two things an engineer can do: 1. blow the horn or 2. reducing the speed, the crew in the main is powerless. (This information is taken from the American Scientist).
• We want the speed tape, the original tape. Write a letter to the public utilities commission of Ohio, write a letter to the federal railroad administration to get copies of the crossing and the history of the crossing. File a motion to produce the locomotive engine. See what kind of engine it was, get all the inter-office memorandums that they send back and forth in-house and don't let them kid you about there not being any, or the work product argument which they invariably use, but Hickman vs. Taylor does not apply because this information is obtained in their ordinary course of business.

Grade crossings in cities and incorporated villages would not have relevancy to the state as the state has less involvement regarding cities or incorporated villages. The state should be on notice of poor crossings. There are a certain set of crossing devices that are provided for in the code and the public utilities commission of Ohio has jurisdiction to regulate the railroads and enforce orders relating to the protection of the traveling public. The priority list must be maintained by the Department of Transportation, Revised Code Section 5523.31 which the standard indicates the standards involving the high probability of accidents on certain crossings. There must be surveys done by the Bureau of Technical Services who would conduct the necessary surveys. They are to determine priority ratings of the crossings and maintain priority reports. One could obtain and should obtain the Public Utilities Commission files having to do with warnings at the crossing and the Commission should make its own independent investigation about warning devices and they must be filed with the Public Utilities Commission of Ohio under Administrative Order 67. The standards with regard to the warning signs are set out in Section 4955.33 which give the dimensions of the signs and the advance warning signs that must be erected. There are certain automatic warning signs which must comply with the standards set out in part eight of the manual of uniform traffic control devices. There are certain rules with regard to crossing watchman, changes in the warning system, maintenance in the warning system and the types of warning devices are set out in the code. The auditing with regard to railroad billing must be conformed to the rules and regulations of the Federal Highway Administration and that is something that can be checked out on a national level. This information was taken from the Bureau of Public Utilities Commission of Ohio, that have members of the railroad technical staff, highways involved with projects involving railroads. There is an annual railroad report which can be obtained from the state which sets out certain information about all crossings. That can be found by writing the Ohio Department of Transportation Bureau of Technical Services. They list the train accident experiences, the number of crossings in the state and other related information.

If the crossing lacks flasher signals, that should be brought out and the police department of the local city should be contacted to see what other accidents there have been there. Pictures should be taken to show any obstructions. Angle of approach, vegetation, crops, witnesses with regard to the height and density of obstructions, appropriate pictures, videotapes in our office we are starting to use three-dimensional computer renderings of the approach to the crossing which should be done in order to appropriately set out the items that constitute a hazardous crossing.

Skid marks, gouge marks, debris, the distance the train traveled before coming to a stop. The investigating officer should be contacted. Was there a conformance with the standards required with regard to signs, markings, cross-bucks, markings in the side of the roadway, whistle posts and the like. If there are flasher signals they should be checked out and if there is any impact cause and effect created by the sun, or lighting. An audio person should be used to measure the sounds of the train whistle, which should be used in order to indicate how the accident happened. With severe obstructions, pictures should be taken at various speeds, 500 feet and then at 100 feet intervals, showing the obstruction of whatever interference there was with the view.

Click here to read the rest of this article.