The point I mentioned about the law requiring drivers to yield at signalized crossings even if the signals are not activated would have been something to consider in the Anoka crash if the signals did indeed fail. However, I have yet to see any proof that they did fail. In my opinion, the State Patrol test reached a false conclusion.
It is amazing how impatient some otherwise rational people get when they're behind the wheel. A few months ago I was stopped a three-lane wide highway off ramp waiting to turn left, and in the right hand lane was an SUV with a guy and it appeared several kids waiting to turn right, with a big tanker truck behind him also waiting to turn right (there's an petroleum plant nearby.) There's a stoplight and it's clearly marked "NO TURN ON RED" but apparently the trucker couldn't wait to pulled around the SUV by going into the middle lane, then made a sharp right turn onto the cross-street - in the process, smashing and scraping the left front portion of the SUV. The driver never even slowed down.
Anyway...re the RR accident, I think another term that might come into play is "reasonable expectation". Remember this accident happened at 10 PM, meaning of course it was dark. I think it could be easily argued that the driver would have a reasonable expectation that if a train was approaching, the flashers would be going and the crossgate down. If they weren't, it would be tough to blame the driver for what happened.
Remember too that this was a civil case not a criminal case. In a civil case, the weight of evidence required to find guilt is less than in a criminal case (See: Orenthal James Simpson vs. State of California). There only needed to be sufficient evidence to show that BNSF's actions or lack of actions allowed the accident and deaths to happen, even if there isn't enough evidence to find someone criminally liable for manslaughter.
I'd be a little suspicious too of BNSF trying to blame the signal maintainer or other employee. Railroads, like any large company, often try to wriggle out of something like this by blaming the employee involved. A nasty tidbit I came upon years back in reading about an fatal locomotive crash was that if someone dies and their body is burned by gasoline or diesel fuel, the resulting chemical reactions often cause tests done on the remains to show the presence of alcohol. Apparently railroads have sometimes used this as a defense when an accident has occurred - hey, we're not to blame, the engineer was drunk.
I may be cold-hearted but I have to place the blame on the driver. If the gates were down and he drove around them, he was stupid and now he's dead. and so are his friends. If they were not, he still should have proceeded with caution across the tracks. Sounds like a bunch of young guys being reckless, thinking they are invincible and can live forever. I do feel sorry for their families, but I don't think BNSF should have to pay for someone else's stupid judgment. As a friend says, "you can't fix stupid" and he's right.
I can remember Dad getting into arguments with people at crossings who wanted him to go around the gates so they could get through too. He'd never think of doing it and he told more than one person that he'd seen first hand what damage a train can do to the human body and it ain't pretty. One co-worker got run over in the yards and they had to pick up the pieces in a box. When my Dad worked the yards, there were no tall light towers, it was totally dark except for their lanterns and engine lights, so he had to be extremely careful all the time. Mom was relieved when he finally got enough seniority to be assigned to the yard office, no more outside work and a lot safer.
My 2 year old grandson loves trains. Last weekend, we were sitting in a parking lot near an intersection so he could watch the light rail trains and NS freight go by.
While we were sitting there my wife and I were conversing about the number of people who were stopping in bumper to bumper traffic ON the tracks while the traffic signal just past the tracks was red. An LRV train passes about every 7 minutes. As we watched, a line of cars did just that. The crossing bell began to ring, the traffic signal turned green to clear the tracks, but it takes a few seconds to cycle as it first stops the traffic on the other road. Then, as is common in Charlotte, the second car in line took a very long time to finish dialing the phone and begin to move. During that time the gates came down, trapping the third car between the gates.
After several seconds of panicky indecision with the driver first trying to back up and then pull forward, the driver was finally able to clear the tracks just as the train came over the hill into view. I don't believe that the LRV operator ever saw the situation.
Had she been hit, you KNOW she would have sued CATS, as would all the people injured in the LRV emergency stop.
Dave
Lackawanna Route of the Phoebe Snow
tree68 Bucyrus I believe your example of the missing stop sign would be accurate, however I believe the analogy you make between your stop sign example and railroad crossings protected by lights and gates is incorrect. What we have to concern ourselves with is the public's presumption that they will be suitably warned by the installed warning devices if a train is approaching. The law may state that the crossbucks alone demand that a motorist yield to an approaching train, and I would argue that most people would exercise that caution at a crossing protected only by crossbucks (well, some people would). But the public presumes that the installed warning devices will function properly, thus providing the necessary warning. They will also presume that if the devices are not functioning, that there is no train approaching the crossing. Right, wrong, or indifferent, it is a factor that I feel is a major player in this case.
Bucyrus I believe your example of the missing stop sign would be accurate, however I believe the analogy you make between your stop sign example and railroad crossings protected by lights and gates is incorrect.
What we have to concern ourselves with is the public's presumption that they will be suitably warned by the installed warning devices if a train is approaching.
The law may state that the crossbucks alone demand that a motorist yield to an approaching train, and I would argue that most people would exercise that caution at a crossing protected only by crossbucks (well, some people would).
But the public presumes that the installed warning devices will function properly, thus providing the necessary warning. They will also presume that if the devices are not functioning, that there is no train approaching the crossing.
Right, wrong, or indifferent, it is a factor that I feel is a major player in this case.
I absolutely agree that the public presumes infallible protection from the signals, as you say. And if the signals did indeed fail in the Anoka case, that presumption probably played a role in the driver failing to see the approaching train. And also, the crossbuck plays exactly the same role at a non-signaled crossing as well, and I do agree that drivers are more inclined to yield at non-signalized crossings because drivers realize that there are no signals to rely on there.
However, according to OL, FRA, and MNDOT, it is illegal for drivers to pass through a signalized grade crossing while not yielding, but rather, presuming that if the warning devices are not functioning, there is no train approaching. I could not get a response to a letter to the Minnesota Highway Patrol asking for their comment on this, and the officer I spoke to on the phone seemed unaware of the requirement to yield to a non-activated, signalized crossing.
This point is interesting to me because I don’t believe many drivers yield to non-activated, signalized grade crossings, or even realize that they are supposed to. They naturally presume that the signals will protect them as you say. Interestingly, recent studies have shown that most drivers are not even aware of the fact that a crossbuck means yield. Instead, they simply interpret the crossbuck as an identifier of a railroad crossing. Therefore, there is a nationwide task underway to install YIELD signs on all non-signalized grade crossings, in addition to the crossbucks on them.
I asked OL, FRA, MNDOT, and MHP why they are not adding YIELD signs to signalized crossings for the same reason they are adding them to non-signalized crossings. After all, if the crossbuck requires drivers to yield at signalized crossings that are non-activated, as a precaution in case of signal failure upon the approach of a train, and drivers don’t know that the crossbuck means yield, then it would be just as important to add YIELD signs to signalized crossings as it is to add them to non-signalized crossings. However, OL, FRA, MNDOT, and MHP either would not comment on that or said that adding YIELD signs to signalized crossings would confuse drivers, and would not be necessary because the automatic signals cannot fail to activate.
I get the impression that these agencies are in somewhat of a catch-22 about telling drivers they can’t rely on the automatic signals, on one hand, and on the other hand, admitting that those signals can fail to activate.
Hi Paul,
How do you get a copy of the memorandum about this accident. My only experience with the judicial system was with jury duty and this opened my eyes to the fact that everything isn't as it seems.Thanks
Richard Vohs
Paul -- *A trial is commonly referred to as the 'trier of fact' or the 'finder of facts', etc. - which is its primary role in our legal process and system." -- oh how I wish I could believe that a civil trial was indeed a 'finder of facts', but I have been involved in too many accidents and incident investigations, and studied too many, to be able to. Perhaps it was true, once upon a time; perhaps it is still true in the majority of simpler situations. It would be nice to think so. But in complex accidents and incidents, no. I can cite -- without effort -- at least a dozen major accidents involving air, marine, and rail, in which a trial jury reached a conclusion, substantiated by a large monetary award, which was directly contrary to the conclusions reached by the Transportation Safety Board or the NTSB (the two I am most closely associated with). It's just the way it is, though -- and I stand by my original comment, which is that I wish that NTSB had the resources to investigate this sort of thing, so that we could know what happened (and, even with evidence tampering if indeed there was any, they could have figured it out).
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
tree68 I think the word "presumption" comes into play here. We know we're supposed to stop at stop signs. We also know that not every intersection has a stop sign, at least not controlling traffic in the direction we are travelling. We would therefore presume that if we are travelling down the road and see no stop sign that we have no duty to stop (local familiarity notwithstanding). That would be despite the fact that there is normally a stop sign at that location that would require us to stop, however it was taken down by some event or another (vandalism, a previous accident) and had not yet been replaced. So too it could be argued for railroad crossings protected by lights and gates. If the lights and gates aren't activated, it can be presumed that there is no train approaching thus no need to stop. This is why crews are notified of malfunctioning crossing protection and must cross at reduced speed, prepared to flag, or some cases required to do so.
I think the word "presumption" comes into play here.
We know we're supposed to stop at stop signs. We also know that not every intersection has a stop sign, at least not controlling traffic in the direction we are travelling. We would therefore presume that if we are travelling down the road and see no stop sign that we have no duty to stop (local familiarity notwithstanding).
That would be despite the fact that there is normally a stop sign at that location that would require us to stop, however it was taken down by some event or another (vandalism, a previous accident) and had not yet been replaced.
So too it could be argued for railroad crossings protected by lights and gates. If the lights and gates aren't activated, it can be presumed that there is no train approaching thus no need to stop. This is why crews are notified of malfunctioning crossing protection and must cross at reduced speed, prepared to flag, or some cases required to do so.
I believe your example of the missing stop sign would be accurate, however I believe the analogy you make between your stop sign example and railroad crossings protected by lights and gates is incorrect.
In the grade crossing example you cite, there would not necessarily be a requirement for the driver to stop, but there would be a requirement to yield. Yielding requires the driver to slow down if necessary and to be able to stop short of the crossing if a train is approaching, and to look in both directions to make sure no train is approaching before proceeding across. If visibility is short, the driver may be required to actually stop short of the crossing to make sure it is clear to cross.
This requirement for drivers to yield is commanded by the crossbuck at signalized crossings 24 hours a day, no matter whether a train is approaching or not, and no matter whether the signals are activated or not. This is because the crossbuck is equivalent to a YIELD sign.
The Butler I understand your thinking, however, just because you broke the law and got hurt on someone's property, does not absolve the property owner of responsibility. See the thread about the kids who were electrocuted while climbing on freight cars and touched the catenary.
I understand your thinking, however, just because you broke the law and got hurt on someone's property, does not absolve the property owner of responsibility. See the thread about the kids who were electrocuted while climbing on freight cars and touched the catenary.
I understand what you are saying, and it probably applies to this case. Suppose a driver passes through the crossing when the gates and signals have failed to activate as a train approaches. Suppose the driver assumes the crossing is clear because the signals are not activated, and that driver therefore proceeds across. Suppose the driver makes it across, but clears the approaching train only by a few yards.
A witnessing cop would give the driver a ticket for failing to yield. But in this civil case, it seems that BNSF was liable for the signal failure even though the law required the driver to not rely on the signals.
James
The point about drivers being required to yield at un-activated, signalized crossings raises an interesting point about this Anoka case. How can BNSF be held responsible for the failure of the signals and gates if the law requires a driver to yield and look to make sure a signaled and gated crossing is safe to cross even if the gates and signals are not activated? If the driver gets killed because he broke the law, would he not be at fault?
The driver did break the law by failing to yield. There is no question about that.
jchnhtfd aricat At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks. My point exactly. But much more succinctly put. And as a result of this trial, we'll never know, will we?
aricat At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
My point exactly. But much more succinctly put. And as a result of this trial, we'll never know, will we?
Not to split legal hairs, but a more accurate way to say it, if I may barge in here: "And as a result of the mishandling of evidence, abuse of the discovery process, etc. - and since because of those actions, the trial* was then unable to or precluded from ascertaining the facts - we'll never know, will we ?"
*A trial is commonly referred to as the 'trier of fact' or the 'finder of facts', etc. - which is its primary role in our legal process and system.
By the way, for those of you who haven't yet read the judge's Memorandum Opinion: She wrote something to the effect that the actions and events in this case were bizarre, something ''like out of a John Grisham novel''.
Yeah - as is often the case, reality trumps fiction - you couldn't make this stuff up and have it be believed. Anyone care to bet how long it is before this tragic incident becomes grist for the Hollywood 'tragedy of the week' mill, or fodder for a Michael Moore/ Connie Chung/ Geraldo Rivera/ 60 Minutes type documentary expose ? I'll just wander over there and make sure that TV is off now . . .
- Paul North.
aricatThe Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
You have to remember though, that if you drive through that crossing only looking at those signals and gates to see if they are clear or not, you are breaking the law by not yielding to the crossbucks. To properly yield, you have to not exceed a speed at which you can stop short of the crossing in case a train is approaching, and you have to look for trains in both directions.
So, in other words, if the signals and gates fail to activate, it is still the driver’s responsibility to look for trains. The signals and gates cannot be relied on alone to prove that it is okay to cross. This comes from Operation Lifesaver, The FRA, and MNDOT.
At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
Wish I could go there! I am just coming off a one-week suspension from this forum for saying "non-PC" things about MN, WI, and SD. Gotta be careful! Deep-pocket-seeking lawyers always win in jury trials. Hope I don't get bounced again!!!
Paul_D_North_JrDid you catch the judge's inference or response to the plaintiff's argument, to the effect that BNSF was possibly withholding some of the HXX or HQX [etc. - can't remember exactly what those 3-letter scronyms were at the moment] software codes, supposedly to avoid giving those 'keys to the kingdom' of reading crossing signal data recorders to that portion of the bar and experts who specialize in crossing collision plaintiffs' cases ?
Yes I did catch that. I could see how that might have been a motive to cover up the evidence, despite the fact that the evidence could have proven the signals worked. I can just imagine what a tangle of motives might have come into play when all the players at BNSF considered how the evidence should be handled. And they did not have much time to sort it all out. They might have gotten tangled up in their own web and caused it to backfire.
Did you catch the judge's inference or response to the plaintiff's argument, to the effect that BNSF was possibly withholding some of the HXX or HQX [etc. - can't remember exactly what those 3-letter scronyms were at the moment] software codes, supposedly to avoid giving those 'keys to the kingdom' of reading crossing signal data recorders to that portion of the bar and experts who specialize in crossing collision plaintiffs' cases ?
I'm not familiar enough with the litigation turf battles here to know if that is of strategic significance, or merely a minor tactical advantage, or an intelligence coup of some kind, or what . . . but it perhaps does explain why BNSF didn't want to let that proprietary and confidential information 'cat out of the bag', for whatever further reason.
Hope that goal was worth the price in this case - even though it seems that code data may now be loose and circulating anyway as a result of the discovery motions, orders, and sanctions in this case ?
After reading the sanctions order, I can see that there sure are problems with the evidence. The unexplained loss of the original data is a major problem, but I cannot conclude what it means. It could mean any of the following:
1) The data was lost by error in judgment about what iteration to preserve after the initial download.
2) The data showed that the signals functioned properly, but also showed something that BNSF felt would work against them, so they gambled that they would be better off without revealing the data.
3) The data showed that the signals failed.
All of the miscues after the initial loss of data seem to indicate intent to correct some perceived problem arising from that initial loss of data.
The problems with the data evidence handling do no prove that the signals failed, although they could be interpreted to give evidence to such a failure. The work on the crossing circuit just before the accident, and the problems with that evidence being withheld reinforces the signal failure theory that is suggested by the data being lost.
But aside from the theory of signal failure being supported by the mishandling of data evidence, the Minnesota Highway Patrol conducted a test that was said to prove that the gates were not lowered when the train hit the car. However, from what I have heard of that test, I would not conclude that it proved the gates were not lowered.
It would have been a great case study for the advancement of Operation Lifesaver, but someone had to tamper with evidence and it's totally lost now.
I read most of the 45 page Memorandum - enough to get the flavor of what was going on. I'll probably wind up regretting speculating about this, but the facts and the judge's recitation and analysis are pretty compelling. So:
Q: "What dog didn't bark yet ?"
A. Sanctions against BNSF's trial defense counsel - they are often imposed simultaneously. Not only was the employee a rogue, but the pattern of deceit and misrepresentation during the discovery phase points at BNSF's attorney as well - unless he was really 'led down the primrose path', or was governed by client instructions - see below. But conduct like that = obstruction of justice risks suspension or disbarment.
Note that not far into the Memorandum, the judge points out that BNSF had substitute counsel representing it in the motion for sanctions.
Q: Why do you think that happened - because BNSF was thrilled about the trial result ?
A. No - it was damage control.
Now here's a couple of loaded questions to ask BNSF's General Counsel at next year's stockholder's meeting:
Q-1: "Were you aware of or did you direct the actions of defense counsel in this case ?"
If yes, you should resign immediately for breach of fiduciary duty in costing the company that much money.
If no, you should also resign immediately for failure to monitor and control the outside counsel that it is your duty to hire and supervise. And by the way:
Q-2: "Why have you not already instituted a legal malpractice/ professional negligence/ intentional tort claim against that attorney for that conduct ?"
Or - 'If he warned you against that conduct - see response to question Q-1 above."
Again: the defense counsel may have had very good reasons for doing what he did - but we haven't heard or seen them yet - much like the railroad's lack of evidence on the accident itself. So I may also be judging him based on a dearth of evidence, not on actual facts on the issue. But the implications and consequences for the railroad, the legal system, and the public at large are serious and far-reaching enough to justify some attempt at commentary and enlightenment here, I think.
Well, perhaps. Perhaps not. At the risk of offending some of my friends who are litigation lawyers, I would remind all and sundry that the purpose of litigation is to win a case; it is always nice if the truth is uncovered at the same time, but that isn't the objective of the exercise, and it doesn't always happen. And clearly a litigation lawyer's objective is to win the case for his or her client -- and so is the objective of the experts the litigation lawyer hires (I know, I've been one quite a number of times). One is obliged to stick to the truth in what one says -- but unless one makes a very stupid mistake, one is not obliged to mention aspects of the truth which are damaging to one's client. Believe me. Further, while experts are not supposed to speculate, lawyers can and do -- so long as they don't say anything which they know to be false.
I am not trying to defend BNSF, nor am I trying to defend the folks who found themselves on a railroad crossing at the same time as an oncoming train -- for whatever reason. Rather, I would like to know what happened, so as to prevent it from happening next time. The NTSB -- and related organizations in many western countries (Canada's TSB, the UK's RAIB, etc.) are experts at figuring that out. It's their job. And they can often do it despite missing or partial data, as appears to be the case in this instance. While they may, and often do, issue safety regulations, to quote one of those organizations,
We achieve this by identifying the causes of accidents and other aspects that made the outcome worse.
Our investigations are entirely independent and are focused solely on safety improvement - we do not apportion blame or liability, nor do we enforce law or carry out prosecutions."
jchnhtfd It really is a shame that there was no NTSB investigation, but there wasn't, at least that I can find. They do not, after all, have the money nor the time to investigate every railroad crossing boo-boo. The reason it is a shame is that the NTSB is pretty good in the impartiality department, something which, regrettably, I do not find to be the case otherwise -- and it would be nice to know what really did go wrong, so as to see what might be done (if anything) to reduce the chance that it will happen again...
It really is a shame that there was no NTSB investigation, but there wasn't, at least that I can find. They do not, after all, have the money nor the time to investigate every railroad crossing boo-boo. The reason it is a shame is that the NTSB is pretty good in the impartiality department, something which, regrettably, I do not find to be the case otherwise -- and it would be nice to know what really did go wrong, so as to see what might be done (if anything) to reduce the chance that it will happen again...
How's this for a speculative scenario.
When the track forces were working on the tracks that day (we are not told the nature of the work) it caused the crossing warning system to operate. Track circuits might be disconnected, or work equipment created an occupancy. To avoid the need to flag road traffic it is not unknown for maintainers to make minor adjustments to the wiring to avoid unnecessary operation of the lights, bells and gates. Indeed, I think this is fairly common practice at a major crossing unless the work is of short duration. It is the safer procedure if trains are still running on other tracks and their automatic circuits can remain fully operational.
Naturally everything has to be restored and checked once the track work is complete. Unfortunately we are all human; perhaps it was a long day or maybe some other railroad or personal issue required urgent attention. Somehow the restoration was bungled or incomplete. If proof existed, it might be grounds for a charge of criminal negligence causing death against the person(s) responsible, the same ones who were also involved in the quick disappearance of that key piece of evidence. But this is just a fairy tale, even if not everyone lived happily ever after. The reality is probably different but will never be known.
There was a sideswipe in the Toronto area around 30 years ago that has some analogies. In that case, the connections to the power switch at one end of a crossover must have been reconnected backwards after some work. The signal circuitry cleared both trains with green signals to proceed straight through; fortunately only one of the facing point switches was reversed and nobody was killed. The incident happened right at the beginning of the afternoon rush hour (one train was a deadhead GO train) and I am sure the dispatcher was pressuring to get his railroad back right away.
I don't think an NTSB investigation would have been able to make any better determination since they would also have to depend solely on the surviving version of the crossing download and decide if it was a complete and accurate record. Obviously the court felt otherwise, and presumably so did the experts retained by the plaintiffs.
As others have commented, it looks like BNSF was let down badly by its local employees and managers, and especially its legal team. If they were trying to cover up the initial cover-up(s) it backfired spectacularly, and the corporation as a whole became a victim financially.
wjstix Bucyrus Yes, it doesn't sound like BNSF is the victim, but it all depends on what these allegations really amount to. They sound bad, but are they really as dishonest, and bad faith as they sound, or are they just being spun that way by the plaintiff’s attorneys? I can’t tell. This picture of bad faith on the part of BNSF has been used to establish the signal failure. In other words, the premise is that since BNSF cannot prove the signals worked, they must have failed, and BNSF cannot prove the signals worked because nothing they say can be trusted to be true. Well to spin it the other way, if may be that the assumption was made that BNSF would have saved the evidence if the evidence had been in their favor. So the fact that some evidence was destroyed shortly after the accident by BNSF leads one to believe the evidence had to show some negligence or failure on BNSF's part.
Bucyrus Yes, it doesn't sound like BNSF is the victim, but it all depends on what these allegations really amount to. They sound bad, but are they really as dishonest, and bad faith as they sound, or are they just being spun that way by the plaintiff’s attorneys? I can’t tell. This picture of bad faith on the part of BNSF has been used to establish the signal failure. In other words, the premise is that since BNSF cannot prove the signals worked, they must have failed, and BNSF cannot prove the signals worked because nothing they say can be trusted to be true.
Well to spin it the other way, if may be that the assumption was made that BNSF would have saved the evidence if the evidence had been in their favor. So the fact that some evidence was destroyed shortly after the accident by BNSF leads one to believe the evidence had to show some negligence or failure on BNSF's part.
Your point is valid. A destruction of evidence certainly suggests a cover-up by the guilty party. I have printed out the entire 45-page document, and am reading every word, but I’m only on page 8.
So far, I am seeing a list of items characterized such as this: BNSF intentionally lied when they did X, Y, and Z. But there is not enough exploration of X, Y, and Z for me to determine the actual intent of BNSF. Every mention of an XYZ point raises 100 questions about the context and overall intent. But, I will keep reading.
One thing that strikes me is just how many issues come into play with the handling of the bungalow data once an accident happens. There are many do’s and don’ts, and with a big corporate bureaucracy being very jumpy about what the data shows and how it will be interpreted, I can see how it could have gotten all gummed up, even if the data actually vindicated the BNSF. And once it became gummed up, it would create a marvelous opportunity for the plaintiff’s attorneys to spin the mess into a picture of intentional deceit to destroy evidence presumably because that evidence showed BNSF negligent regarding the signal operation.
And thanks user, "Informed" for linking the judge's Sanction Order.
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