Injury or Death from Train Collisions

I. INTRODUCTION

When a person is injured or killed in a collision with a train, the first reaction is often that "he should have been more careful". The reality is that in many cases the railroad is more at fault than the driver. Apart from immediate medical care, the single most important thing for the driver (or his family) to do is to immediately hire an attorney skilled in train collisions.

II. MYTHS AND REALITIES

Trains collide with motor vehicles 10-12 times per day in the United States, and approximately 250 people per year are killed. Many others are very seriously injured. Some 80% of these collisions happen at unguarded crossings (i.e. crossings that have only the standard X-shaped "crossbuck" signs). However, even at active crossings (i.e., those with flashing lights and/or gates) there can be malfunctioning equipment or other problems contributing to the collision.

The railroad industry has used carefully crafted publicity to create the impression that collisions are almost always the fault of the driver (e.g., failure to look properly, trying to beat the train). In reality, studies have shown that human limitations in the ability to see, hear, and react place severe limitations on a driver's ability to avoid collisions. This is particularly true when the inherent limitations of nighttime vision and of peripheral perception are weighed, as well as the difficulties in hearing when music is being played in a well-insulated car. There are often steps railroads can take to protect against such human limitations. However, they often fail to take such steps, and the result is that some unguarded crossings are inherently dangerous. In other words, even if you are careful you may not get safely across.

Therefore the reality is that railroads often are at fault for these collisions, and can be held at fault for their wrongful conduct. Skilled attorney assistance is needed to obtain a fair settlement or jury verdict. Due to the need to hire many expert witnesses, there is usually great expense involved in making such claims. For this reason, attorneys normally accept such cases only where there is serious injury or death.

III. THE PROBLEM OF PREEMPTION

Over the years railroads have lobbied hard for laws protecting them from being responsible to motorists injured or killed by their trains. One area in which they have had success involves warning devices at crossings. The railroads have obtained federal laws that make it the duty of the state and federal governments, rather than themselves, 1) to decide upon the kind of warning devices needed at crossings, and 2) to pay for the installation of such devices. However, the railroads still have the duty of maintaining such safety devices. Suppose a railroad line crosses a rather heavily traveled road without gates, and someone is killed by a train. Even though gates should have been installed, the railroad is not responsible for failing to install the gates because the state (not the railroad) has the duty to install gates. However, if the death results from the railroad's failure to properly maintain gates already installed, the railroad may be held responsible.

Another example of federal preemption involves speeding. In the past, if the injured party claimed that the train's speed was the cause of the injury or death, a jury was allowed to decide the issue. As a result of the federal laws mentioned above, the federal government now sets uniform national speed limits for trains. A railroad can no longer be held liable for activity which is in compliance with specific federal regulations. For example, in most cases a train travelling within the federal speed limit can no longer be found liable based on speeding, even though under traditional standards it might have been considered careless to be travelling at such speed under the particular circumstances of the case.

Since January 2005, federal agencies have issued numerous new rules that preempt state law, including in the area of railroad safety. Such rules can have the effect of allowing corporations to escape responsibility even when they negligently or knowingly endanger people. Federal preemption has in effect become a "get out of jail free card" card for railroads and other corporations. Federal regulations and state law should work together to make consumers safer.

IV. OVERCOMING PREEMPTION

In spite of their intense efforts to protect themselves from responsibility for their wrongful conduct, railroads can still be held responsible for such conduct in many instances.

Railroads have many duties of safety imposed upon them by both federal and state law which they do not always observe. It is not at all unusual to find railroads failing to fully carry out some of their duties due to the cost. For example, properly maintaining a gated crossing can cost $5,000 to $10,000 a year. While never admitting the fact, railroads may consider that paying for severe injuries and deaths is cheaper than full compliance with such laws (i.e. "Death is cheaper than safety").

Examples of other conduct for which a railroad can be held responsible include:

Failure to maintain vegetation, or allowing other line of sight blockage, such that it is difficult or impossible to safely check for trains
Failure of engineer to keep a proper lookout
Failure to blow whistle in timely manner
Failure to do background checks on employees with a safety problem, or to train employees properly
Failure to maintain the train's equipment(e.g. check brakes, etc.)

V. COMPENSATION FOR INJURY OR DEATH

The law allows the following types of compensation when a person is wrongfully injured by a train:

Past and future medical expenses
Past and future lost earningst
Past and future pain and suffering and mental anguish
For scars and disfigurement and any caretaking expense
The injured person's spouse's loss of services and companionship

In the event the person dies, additional compensation is available for wrongful death. This includes compensation for the person's loss of his life and for the mental anguish suffered by family members. Please see "Arkansas Wrongful Death Claims" for more details.

In some cases, punitive damages are also available. Punitive damages are additional damages awarded to discourage the railroad from engaging in such conduct in the future. Punitive damages require more than simple carelessness. The railroad must have acted intentionally or with a reckless disregard for the consequences of its acts. For example, if the railroad had been aware of a dangerous condition for some time, and did not correct it, punitive damages might be awarded. In some cases the courts have allowed punitive damages where the railroad has engaged in "cover-up" conduct (e.g. destroying voice tapes or track maintenance records within a short time after an incident occurs).

VI. WHAT YOU SHOULD DO

The very serious nature of these cases makes it important to hire a lawyer as soon as possible. Your attorney should see that the collision scene is immediately investigated, and take steps to prevent the railroad from destroying evidence. Even short delay can result in valuable evidence being lost. After this important initial work, your attorney's duty is to put together the team of experts needed to prove the railroad's fault, the extent of the injuries, and the amount of compensation which should be paid. Hire a lawyer based upon his skill and experience, not based on promises. You should not expect to pay lawyers' fees unless the lawyer obtains a recovery for you.

This article is based on Arkansas and federal law. While the general principles apply in most states, there may be variations in particular states.