Sometimes the railroad is at fault

[Anonymous]

Thought y'all might find this of interest. My guess is that 99.99 per cent of crossing accidents happen to be Darwin's theory in action- the dumber the driver, the more fatal the accident. However, it looks like NS fouled up on maintenance of way in this case....


Posted: Thu Jun 17, 2004 7:23 am Post subject: Railroad Liable For Failing To Maintain Vegetation At Crossi

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Railroad Liable For Failing To Maintain Vegetation At Crossing
The estate of a driver killed at a railway crossing could sue the railroad
under state law for failing to maintain vegetation that obscured the driver's
ability to see the oncoming train, the 6th Circuit has ruled, upholding a $1.4 million jury award.
http://www.lawyersweeklyusa.com/pdf/usa/04/shanklin9928412.pdf to read the full text of the opinion.

Erik

[Anonymous]

Erik-

You are jumping to conclusions based upon the summary of a legal decision. Regulations such as the vegetation statute in question were never intended to create a private right of action against railroads. Regulations of this type should be and in most cases are similar to FRA regulations that do not create aq private right of action. This case is an example of what plaintiff's lawyers do when railroads (NS in particular) start mounting cameras and recording equipment on trains which keeps plaintiff's from claiming "the Engineer didn't blow the horn in time" or, "I didn't go around the gates" when there is videotape that shows it happening. This is an example of bad law that will cause problems for years to come.

LC

[locomutt]

QUOTE: Originally posted by Limitedclear

Erik-

You are jumping to conclusions based upon the summary of a legal decision. Regulations such as the vegetation statute in question were never intended to create a private right of action against railroads. Regulations of this type should be and in most cases are similar to FRA regulations that do not create aq private right of action. This case is an example of what plaintiff's lawyers do when railroads (NS in particular) start mounting cameras and recording equipment on trains which keeps plaintiff's from claiming "the Engineer didn't blow the horn in time" or, "I didn't go around the gates" when there is videotape that shows it happening. This is an example of bad law that will cause problems for years to come.

LC

I very much agree with LC on this one.
I know about the maintence and etc,but don't
think the "railroads" should be blamed everytime
something like that happens!

[mudchicken]

LC is right-on-it....[tup]

Erik - Please be aware that in Jury trials, that attorney theatrics and mudslinging at the "big bad railroads"[:(!] gets very heavy, especially in JURY trials where the two sides start playing on emotion instead of point of law. (probably happened here)....The EQUITY card gets played to the max and odd things happen. On a rare occasion, the railroad is at fault (like at McLean, IL), but 99.9% of the time you still have the motorist or pedestrian at fault. Anything trial lawyers can do, ala the "angels on the track" scam, will be pulled by the ambulance chasers. Having been an expert witness several times and also an accident surveyor, you wind up sitting on your hands as some of these clowns pull their stunts in the courtroom. It is so obvious/ transparent on what they are doing, even after admonition by the judge, it's a wonder that the slander rule and threat of disbarment is not invoked more than it is. Also, a flip side to the vegetation issue is : (1) roadmasters have been sued for removing trees by adjoining landowners [ including me] and (2) the local government noxious weed/ weed abatement folks ought to be held liable as well along with adjoining landowners (counties love the assessment powere of fines but frequently are the worst violators of the weed rules) I'm not sure if it was this case or Louisiana where the railroad was somehow at fault for a vision obstruction (trees) totally off the R/W and on public/private lands.....

I wi***hat sometime, in a case like this one, summary judgement would be granted in favor of the railroad and that the plaintiff would be told to "get over it" or just plain GO AWAY!.....

[banghead][banghead][banghead]

[fuzzybroken]

Seems to me that this was a case where the only grade crossing protection was a crossbuck -- not very much "protection" at all against a freight train IMHO -- and if the vegetation blocked all view of the railroad, I think that the railroad SHOULD be liable! Either cut back the vegetation (not all that easy in the south, what with kudzu and all), or work with local authorities to come up with a better grade crossing solution. I do, however, agree that it is extremely rare that it is actually the railroad's fault.

On the other hand, if the dolt drove around the gates 'cuz he couldn't see anything coming, standard Darwin rules apply...

[2c],
-Mark
http://www.geocities.com/fuzzybroken

[mudchicken]

fuzzball:

If there should have been gates, sue the state PUC and county for failure to fund installation. The gates are there to protect the railroad from idiot motorists as much as the other way around...(Hint: There is no money in that, so the lawyers are not inclined to try that tactic...)

starched feathers

[Anonymous]

QUOTE: Originally posted by mudchicken

fuzzball:

If there should have been gates, sue the state PUC and county for failure to fund installation. The gates are there to protect the railroad from idiot motorists as much as the other way around...(Hint: There is no money in that, so the lawyers are not inclined to try that tactic...)

starched feathers

MC-

Yeah, I wi***here was a way of pressuring the government entities (local, state and Feds) to actually put up enough money to fund all of the necessary crossing improvements. Unfortunately, most of those funds are alotted on the basis of body count rather than as a way to prevent future collisions. Of course, the government has immunity from lawsuits (which can be waived, although it seldom is in any meaningful way) so you won't get damages from them. The best you can do in most cases is force them to spend money through an injunction or other court order.

LC

[Anonymous]

Like they always say................Some people never learn!
They always got to find out the hard way!
[bow]BNSF[bow]

[DSchmitt]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by mudchicken

fuzzball:

If there should have been gates, sue the state PUC and county for failure to fund installation. The gates are there to protect the railroad from idiot motorists as much as the other way around...(Hint: There is no money in that, so the lawyers are not inclined to try that tactic...)

starched feathers

MC-

Yeah, I wi***here was a way of pressuring the government entities (local, state and Feds) to actually put up enough money to fund all of the necessary crossing improvements. Unfortunately, most of those funds are alotted on the basis of body count rather than as a way to prevent future collisions. Of course, the government has immunity from lawsuits (which can be waived, although it seldom is in any meaningful way) so you won't get damages from them. The best you can do in most cases is force trhem to spend money through an injunction or other court order.

LC

The amount of funds available is not unlimited. While there are other criteria considered (for instance speed and volumn of traffic, complaints, observation of problems by "experts"), "body count" carries a lot of weight in making decisions (as it should). While no accidents at a location doesn't mean there is no problem, there are plenty of identified locations that need attention first. A prudent driver is while be relatively safe anywhere. An inprudent one can have an accident anywhere. Spending money where it is not necessary leaves real problems unsolved.

[BaltACD]

In as much as in 99% of all road crossings that exist....the roads came into existance long after the railroad right of way had been constructed.....Unilatterly revoke the easments and contracts that the railroads granted for their property to be crossed.

Simplistic, Yes. But let's face the facts that the road system of this country had to get permission to cross private railroad property.....it is time for the railroads to reclaim their property rights.

[edblysard]

Read the courts opinion...
First defect is, of course, the fact that the part of the deposition concerning NS safety record was allowed to be shown to the jury precludes a mistrial, which is odd that NS failed to request.
The sitting judge should have pre-viewed the video.

Two, although not argued by NS, no where does it specificly state the land belonged to NS, and the statue on vegatation, as supported by the review judge, is designed to prevent injury to rail passengers, not motorist.

Three, the portion in regards to the adquated crossing protection was reversed on appeal, because federal law pre-empts local law, and the sight triangle nonsense likewise was dismissed, as it dosnt pertain to railroad crossing, but is intended for roadway intersections, not railroad grade crossings.

Fourth, the opinion states the deceased lived within a mile of the crossing, and used it at least twice daily, which indicates he was aware of the crossing, and aware of the danger associated with it.

Had the estate been able to prove that the deceased had contacted NS in regards to the problem, it would have been a cut and dried case.

Note that in the original suit, the estate argued that the train failed to sound it horn long enough to give warning, but note that both the court, and the appeals judge found the engineer sounded the horn for a constant eleven seconds before impact, and that the auto was traveling 20mph.
Both indicate that the engineer could see the auto, for at least 11 seconds.
If he could see the car, the car could see him.
This portion of the findings was reversed on appeal.

So it ended up being a case of a faulty interpretation of a old state statue, intended to protect rail passengers from being injured by trees in case of a derailment, versus a applicable comprehensive statue designed to provide
clear veiw sight lines at grade crossing, (which most states have yet to address).

Count on the estates attorney using all of the showmanship he(or she) could to turn it into a little man against the big bad railroad show trial.

The very fact that it was a jury trial, and the fact that NS asked, several times, for the court to reduce to judgement,( they were asking the court(judge) to make a final ruling on the vegitation statue, before the jury was retired) shows they NS, were attempting to clairfy if said statue could even be applied.
The court refused to rule on this, allowed the statue to be introduced as evidence, and later, on appeal, it was again allowed as evidence, most likely due to lack of any other state statue in regards to this.

Bluntly, the jury felt sorry for the deceased, found for the estate and issued an dollar award, and the reviewing court couldnt find any major defect in law or procedure to reverse this, so they let it stand.

This is one of the very reasons your should push your states legislature to design and enact a statue or comprehensive law in regards to this very issue, or to disable or rescind old statues, and allow federal law to prevail..

Ed

[Anonymous]

Well said, Ed. Say are you a lawyer, or something?

LC

[edblysard]

Uhh, something....
Well, at lest thats what Mom used to say, when she claimed me.

No, I worked as a investigator for The Office of the Attorney General, State of Texas, before I came railroading.

Railroading is much more fun, pays better too.

Dont miss the badge, the gun or the responsibility of both as much as you would think.

Ed

[Mookie]

A badge! A Gun? OOOO Mookie is interested! She just loves law enforcement!

[8D]

[jchnhtfd]

Another minor problem (?) on removing vegetation (and other nuisances blocking the view of the tracks -- like, for instance, some dingbat's shed) is that all too often said view-blocker is on someone's private property. I don't know how it is elsewhere, but here in the upper right hand corner, getting onto private property to remove something which blocks the view of the train from the crossing (and the Darwin candidate from the train, I might add) is d___ near impossible.

You're damned if you do (those lousy railroad guys forced me to tear down my beautiful gazebo/tool shed/poison ivy hedge) and damned if you don't (those lousy railroad guys won't to anything to help visibility at the crossing).

We'll never win a popularity contest for the locals...

[Anonymous]

Ed- This case came up in one of my forensic groups on the web- I'd like to use your post- it's clear, concise and to the point.

Erik

[Anonymous]

Here's another crossing article where the railroad was found to be at fault:

COURTS


Jury finds CSX liable in deaths

By TRACY DASH


A Hancock County jury on Friday awarded more than $5 million to the families of two boys killed in August 1999 when a CSX train rammed into a car in which they were riding.

The jury deliberated for about three hours before returning a verdict in favor of the families of Sean Finegan and Joseph Winningham, both 12. Jurors awarded $2.8 million to Winningham's family and $2.3 million to Finegan's relatives.

Biloxi lawyer Will Denton said court officials have said the damages are believed to be the largest awarded in Hancock County.

Finegan and Winningham, both of Bay St. Louis, were passengers in a 1992 Chevrolet Cavalier driven by 21-year-old Cecile F. Bilbo. Bilbo was crossing the railroad grade at Webb Avenue when the train struck her car.

The case involving Bilbo's death was settled out of court.

A group of at least five lawyers from Denton's firm and a Houston law firm convinced the jury that CSX Transportation, which owns the railroad line, was partially liable. The families' lawyers said Bilbo's car got stuck in a hole along the side of the crossing.

"This crossing had been neglected and allowed to deteriorate," said John Grazier of Houston, who represented the families.

The jury also found that Bilbo and the city of Bay St. Louis shared partial responsibility in the accident.

Although the families' claim did not include the lack of warning devices at the Webb Avenue crossing, their lawyers said crossing gates were installed there after the accident.

CSX could not be reached Saturday for comment.

[rrnut282]

WRONG WRONG WRONG. If the car got stuck, it's the local government's responsibility to maintain a road crossing, not the railroad's. One exception would be if the railroad re-ballasted and removed the existing grade-crossing (closed the crossing) to make the work go faster. At least they got it partly right in that the driver shared in the responsibility for the accident, for once.