Back in the day I worked for a regional planning commission, one of our functions was to prioritize crossing protection improvements with allocated federal (RRP) and state and local matching funds. These were largely county and local initiatives. The state would send a list of railroad protection and surface projects for the roads under their jurisdiction. Both were incorporated in the annual element, or work program for transportation projects in the 3-county region. Usually the railroads picked up the county or municipal jurisdiction share, 5% of the total, without too much complaint. Other programs were tapped from time to time. I was not aware that the state commerce commission had any hand in the process.
In ten years, the commerce commission never ordered improved protection for local roads; and they only acted to approve a number of crossing closings and open one new crossing. On these occasions, the commission served to arbitrate public and railroad concerns.
Maybe the tenor of discussions has risen; but I can't see how this would improve relations and lead to more mutually satisfactory resolutions of differences. Maybe gates are a headache to maintain and replace; but overall they had proven to be more effective than just flashers - even with a culture of beating the train.
I find it most interesting that this case found BNSF in fault because they failed to prove that the automatic crossing protection system was working during the crash. From this information, I conclude that if there were no automatic system of flashers and gates, but just crossbucks instead; then BNSF could not have been found at fault.
Generally I would think that automatic flashers and gates reduce liability because they reduce the chance of collisions. However, by the finding of this trial, it would seem that automatic flashers and gates raise the liability exposure and potential liability cost of a crossing because they can fail to function, or the railroad company can fail to prove that they functioned at a particular train event.
Is this correct?
Yesterday on the previous page, aricat mentioned the Minneapolis Star Tribune article about how an attorney for BNSF was paying for witnesses. I thought it was very strange, both in the way it was written, and in the way it analyzed the ethics and legality of paying for witnesses. It struck me as an advocacy piece intended to poison the atmosphere against BNSF. However, I have to wonder about the appearance of paying witnesses, no matter whether it is legal or not.
Today, a second article appeared in the Minneapolis Star Tribune revealing that yesterday, District Judge Ellen Mass denied the motion for a new trial by BNSF, apparently because the payment for witnesses “did not pass the smell test,” as the judge put it. The first article could not conclude whether paying for witnesses was legal or not, and today, in the second article, we learn that apparently the judge does not even know the answer to that question, instead relying on a “smell test.”
But, to me, the strangest thing revealed in both of the articles, but particularly in the first article is the nature of the testimony that would have been provided by the paid witnesses. I can’t tell whether it is just sloppy writing or weak legal theory. Look at page 2 and 3 of the first article. What the witnesses would have told the court is detailed in some of the most confusing, disconnected, and pointless construction that I have ever seen. The last five paragraphs of page 3 are just bizarre.
Here is the link to the first article:
http://www.startribune.com/local/north/49132697.html?elr=KArks7PYDiaK7DU2EkP7K_V_GD7EaPc:iLP8iUiD3aPc:_Yyc:aUU
Here is the link to the second article:
http://www.startribune.com/local/north/49284527.html?page=1&c=y
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