greyhounds wrote: penncentral2002 wrote: Bucyrus wrote: Well, excuse me!I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment".
penncentral2002 wrote: Bucyrus wrote:
Bucyrus wrote:
Well, excuse me!
I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.
One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.
That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment".
Greyhounds,
I have really appreciated your posts over the last few years-I have even cut and pasted some of them and forwarded them to my father. I can recommend a good copyright lawyer to you if you would like to sue me for copyright infringement . . .
Also, you can probably prove my below-listed comments to be error just by the mere fact that this type of post comes up on the forum every forty days, and I still engage in the Sisyphean struggle of trying to convince people that they are wrong. I am the proverbial dog that just keeps getting shocked (nothing personal by the dog reference).
But, you, as someone who usually knows what they are talking about, should really try to look at things from a different perspective before calling me and my bard a pack of thieves. (1) I graduated in the top of my class from a first-tier law school, have just about any credential that a top-tier lawyer can have, work for what is arguably the biggest and most successful predominantly plaintiff law firm in Indiana. Along your lines, I should have my own private jet that flies me to my estate next to the Lilly family every night. Sadly, and in stark contrast to what you say, I drive a 2001 Grand Prix that only has power steering in one direction. My wife drives a pretty nice car, but that is from her family-who got their money through banking rather than law. The profit for attorneys-especially personal-injury attorneys-is not even close to what you might think it is.
Most plaintiffs firms that make a lot of money do so on volume. And even for them, it is really the two or three guys at the top who make a lot-not the 100 blokes like me who work for them.
I will guarantee, absolutely grantee, that my brother the union blue-collar welder makes more money than 90 of personal injury plaintiff and defense attorneys. Moreover, he probably has 40-50 days a year off and got to start making big money at 18 rather than after 8 years and $250,000 worth of post-high school education.
Admittedly, the ten percent of attorneys that make more than my brother make considerably more (probably in the magnitude of ten-to-twenty times), but they do so because they have a bunch of suckers like me working for them and profit off of the volume. Also, there are some Merger and Acquisition and Patent law lawyers who earn/steal (depending on your perspective) jaw-dropping salaries, but they constitute one percent of one percent of attorneys.
Bottom line, I can say with 100% confidence that no one is going to get rich off this case.
(2) The individual crew members will have their own attorneys-but they will be paid for by the FEC. It may or may not be right that they are sued, but they are being sued for very hard to explain strategic reasons that have everything to do with FEC paying and they will never pay a dime out of their own pocket.
(3) What is your alternative to the system? Although I am loathe to admit political beliefs on the forum, I share your purported anti-bureaucratic ideals. Sure, Europe doesn't have the same legal system as the United States, but it is substituted with a billion bureaucratic hurdles that you and I think are not the right way to go. Just how do we determine who gets compensated for injuries if not by this system?
The complex rules that you complain of-the vast majority of which have existed for well over 200 years-reflect the need to work with and interact with a very complex society. I would be willing to bet that if you really sat down and thought about them, you would think differently of them.
I am sure you are shaking your head at me right about now, assuming you didn't stop reading . . . But, I can promise you one thing, when my brother comes and visits me in a vehicle that is worth 7 times mine and is on one of his month-long slow down no-work periods, and I can only spend a half-day on Sunday because I have to go into the office so I can make the payment on my house in the ghetto, I am going to have an awfully hard time seeing things your way.
Gabe
gabe wrote: greyhounds wrote: penncentral2002 wrote: Bucyrus wrote: Well, excuse me!I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment". Greyhounds,I have really appreciated your posts over the last few years-I have even cut and pasted some of them and forwarded them to my father. I can recommend a good copyright lawyer to you if you would like to sue me for copyright infringement . . . Also, you can probably prove my below-listed comments to be error just by the mere fact that this type of post comes up on the forum every forty days, and I still engage in the Sisyphean struggle of trying to convince people that they are wrong. I am the proverbial dog that just keeps getting shocked (nothing personal by the dog reference).But, you, as someone who usually knows what they are talking about, should really try to look at things from a different perspective before calling me and my bard a pack of thieves. (1) I graduated in the top of my class from a first-tier law school, have just about any credential that a top-tier lawyer can have, work for what is arguably the biggest and most successful predominantly plaintiff law firm in Indiana. Along your lines, I should have my own private jet that flies me to my estate next to the Lilly family every night. Sadly, and in stark contrast to what you say, I drive a 2001 Grand Prix that only has power steering in one direction. My wife drives a pretty nice car, but that is from her family-who got their money through banking rather than law. The profit for attorneys-especially personal-injury attorneys-is not even close to what you might think it is.Most plaintiffs firms that make a lot of money do so on volume. And even for them, it is really the two or three guys at the top who make a lot-not the 100 blokes like me who work for them.I will guarantee, absolutely grantee, that my brother the union blue-collar welder makes more money than 90 of personal injury plaintiff and defense attorneys. Moreover, he probably has 40-50 days a year off and got to start making big money at 18 rather than after 8 years and $250,000 worth of post-high school education. Admittedly, the ten percent of attorneys that make more than my brother make considerably more (probably in the magnitude of ten-to-twenty times), but they do so because they have a bunch of suckers like me working for them and profit off of the volume. Also, there are some Merger and Acquisition and Patent law lawyers who earn/steal (depending on your perspective) jaw-dropping salaries, but they constitute one percent of one percent of attorneys.Bottom line, I can say with 100% confidence that no one is going to get rich off this case.(2) The individual crew members will have their own attorneys-but they will be paid for by the FEC. It may or may not be right that they are sued, but they are being sued for very hard to explain strategic reasons that have everything to do with FEC paying and they will never pay a dime out of their own pocket.(3) What is your alternative to the system? Although I am loathe to admit political beliefs on the forum, I share your purported anti-bureaucratic ideals. Sure, Europe doesn't have the same legal system as the United States, but it is substituted with a billion bureaucratic hurdles that you and I think are not the right way to go. Just how do we determine who gets compensated for injuries if not by this system?The complex rules that you complain of-the vast majority of which have existed for well over 200 years-reflect the need to work with and interact with a very complex society. I would be willing to bet that if you really sat down and thought about them, you would think differently of them.I am sure you are shaking your head at me right about now, assuming you didn't stop reading . . . But, I can promise you one thing, when my brother comes and visits me in a vehicle that is worth 7 times mine and is on one of his month-long slow down no-work periods, and I can only spend a half-day on Sunday because I have to go into the office so I can make the payment on my house in the ghetto, I am going to have an awfully hard time seeing things your way.Gabe
Gabe,
You left out one unanswered question that bugged me throughout the whole reading.....
which way to you have to turn so the power steering works?
http://www.youtube.com/user/pavabo
http://www.flickr.com/photos/paulvbox
Soo 6604,
My right arm is considerably more muscular than my left . . .
Fortunately, the only time you really need power steering is at extremely low speeds, and I can muscle the wheel at such speeds. I now know why they made old-time steering wheels so big--to provide extra leverage to compensate for the absence of power steering . . .
Now, dont you find it interesting that:
on one hand we deplore it when railroad security shows up and chases us off the property and actually enforces the trespassing laws.
on the other hand we are amazed that someone actually trespasses and does something stupid and then litigates for massive $$$.
Perhaps we should understand the situation when the railroad security, or the town policeman shows up and asks us to leave. It is their property and they have a business to run.
Be safe, be smart.
ed
p.s. those days of walking the Illinois Central ROW are long gone, particularly carrying a 20 gauge shotgun. Can you imagine what a train crew would think today?
MP173 wrote: Now, dont you find it interesting that:on one hand we deplore it when railroad security shows up and chases us off the property and actually enforces the trespassing laws.on the other hand we are amazed that someone actually trespasses and does something stupid and then litigates for massive $$$.Perhaps we should understand the situation when the railroad security, or the town policeman shows up and asks us to leave. It is their property and they have a business to run.Be safe, be smart.edp.s. those days of walking the Illinois Central ROW are long gone, particularly carrying a 20 gauge shotgun. Can you imagine what a train crew would think today?
Ed, for the record, I personally do NOT find it deplorable when I am asked to leave private property for two reasons...first because I seldom find myself inadvertently trespassing and second because when I do I know I am in the wrong and am happy to obey the law. If any of us don't want to run afoul of the law and/or railroad security forces, then we best not break the law.
Ulrich wrote:FEC should be more vocal in its defense. That women is on TV playing the victim card and the railroad doesn't take the opportunity to respond? FEC should countersue for tresspassing on private property and endangering the people who work on their trains.
This country is so litigious . . .
RIDEWITHMEHENRY is the name for our almost monthly day of riding trains and transit in either the NYCity or Philadelphia areas including all commuter lines, Amtrak, subways, light rail and trolleys, bus and ferries when warranted. No fees, just let us know you want to join the ride and pay your fares. Ask to be on our email list or find us on FB as RIDEWITHMEHENRY (all caps) to get descriptions of each outing.
The FEC being more vocal, could backfire on them. There are enough people out there that would just see that as a "big mean greedy corporation" trying to get out of paying.
I believe it was the UP that did something like that on a grade crossing accident and it was made out to be the villain, for a second time.
Jeff
I see no point in FEC to do anything on this other than make a complete and upfront issue of what can and will happen when you try to beat a train. It should be structured simply as a safety issue.
Gabe, you know I respect you and value what you say, but...wouldnt your admission of driving a vehicle with limited mechanical abilities be a major problem for you if a young lady with an ipod cranked up ran out in front of you (without looking) on Meridian Street? A good attorney would dissect that and go after you...and your firm if you were on your way for a deposition.
I have learned quite a bit from our attending attorneys on this thread.
Have fun with your trains
marknewton wrote: penncentral2002 wrote: Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building)Another would be when an idiot jogs into the path of a moving train. But then, if you deliberately do that, what follows is not an accident. In most accidents both parties will be blameworthy.The train crew in this incident are blameworthy how? Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.The train crew are being sued. Are they also to be regarded as a large corporation?Mark.
penncentral2002 wrote: Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building)
Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building)
In most accidents both parties will be blameworthy.
Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.
Mark, if I had any actual information on this case besides the media report, it would be unethical to mention it. All I or anyone else can do without all of the evidence is to raise hypotheticals which requires people to have an open mind and not to prejudge the railroad as being blameless. Anyone who thinks that they can judge the merits of a lawsuit based on a newspaper article or TV report is delusional.
Lest you think I am against railroads, note that I have done legal work for a Class 1 (not going to say which one or the nature of the work).
The trespass issue is different - there is one thing for a railroad employee to tell a person to get off of what appears to be public property (this happened to me, there was no indication that the road I was on was anything but a public road - it connected two public roads and was a substantial distance from the tracks, yet some railroad employee told me it was railroad property and was very rude to me, even when I told her that I was an attorney employed by the state of Virginia and I know that legally if a road connecting two public roads is not posted as private, it is assumed to be a public road - and that if you say that isn't a public road, I'll leave (especially since I already got my shot) or what is actually public property versus trespassing. I have no problem with people courteously saying that something is private property (maybe the signs are missing) and asking politely for someone to leave and have no problem with someone being arrested if they are on posted private property. I do have a problem with people who try to claim that you cannot photograph trains from a public street or road or public park or other such public property - but that has only happened to me once and again, I had already got my shot so it wasn't worth fighting.
MP173 wrote: I see no point in FEC to do anything on this other than make a complete and upfront issue of what can and will happen when you try to beat a train. It should be structured simply as a safety issue.Gabe, you know I respect you and value what you say, but...wouldnt your admission of driving a vehicle with limited mechanical abilities be a major problem for you if a young lady with an ipod cranked up ran out in front of you (without looking) on Meridian Street? A good attorney would dissect that and go after you...and your firm if you were on your way for a deposition.I have learned quite a bit from our attending attorneys on this thread.ed
It would certainly be "an issue." But, since it is legal to drive a car without any powersteering, I figure a car with power steering in one direction is twice as legal. My Dad gets on me about this all of the time--I think he even said something similar to what you just said once. The only place I think it is a danger would be, were my car stopped, and I had to accelorate away in a particular direction to avoid an accident (if I am going faster than 8mph there is no difference between driving a car with power steering.
The way I see it is, it costs more to fix the car than the car is worth. And every month I continue to drive my paid off car, I can retire $400 worth of student loan and house debt rather than paying for a new car.
But, my Dad would certainly agree with your way of looking at things though . . .
P.S. I am not contending the FEC lawsuit is meritorious. My only point is, those aren't the cases attorneys get rich off of, and there is a warped perception that you can just file a frivolous lawsuit and the winning lottery ticket just falls into your hand. It doesn't work like that. A lawfirm with 20 FEC-like cases is not going to be in business very long. I would like to be a lawfirm defending 20 FEC-like cases though--they might get rich.
gabe wrote:P.S. I am not contending the FEC lawsuit is meritorious. My only point is, those aren't the cases attorneys get rich off of, and there is a warped perception that you can just file a frivolous lawsuit and the winning lottery ticket just falls into your hand. It doesn't work like that. A lawfirm with 20 FEC-like cases is not going to be in business very long. I would like to be a lawfirm defending 20 FEC-like cases though--they might get rich.
Doubt the defense attorneys get too rich off of cases like this, FELA cases are where the real money is at.
penncentral2002 wrote:...if I had any actual information on this case besides the media report, it would be unethical to mention it. All I or anyone else can do without all of the evidence is to raise hypotheticals which requires people to have an open mind and not to prejudge the railroad as being blameless. Anyone who thinks that they can judge the merits of a lawsuit based on a newspaper article or TV report is delusional.
...trespass issue is different - there is one thing for a railroad employee to tell a person to get off of what appears to be public property (this happened to me, there was no indication that the road I was on was anything but a public road - it connected two public roads and was a substantial distance from the tracks, yet some railroad employee told me it was railroad property and was very rude to me, even when I told her that I was an attorney employed by the state of Virginia and I know that legally if a road connecting two public roads is not posted as private, it is assumed to be a public road - and that if you say that isn't a public road, I'll leave (especially since I already got my shot) or what is actually public property versus trespassing. I have no problem with people courteously saying that something is private property (maybe the signs are missing) and asking politely for someone to leave and have no problem with someone being arrested if they are on posted private property. I do have a problem with people who try to claim that you cannot photograph trains from a public street or road or public park or other such public property - but that has only happened to me once and again, I had already got my shot so it wasn't worth fighting.
gabe wrote: Greyhounds,I have really appreciated your posts over the last few years-I have even cut and pasted some of them and forwarded them to my father. I can recommend a good copyright lawyer to you if you would like to sue me for copyright infringement . . . Also, you can probably prove my below-listed comments to be error just by the mere fact that this type of post comes up on the forum every forty days, and I still engage in the Sisyphean struggle of trying to convince people that they are wrong. I am the proverbial dog that just keeps getting shocked (nothing personal by the dog reference).But, you, as someone who usually knows what they are talking about, should really try to look at things from a different perspective before calling me and my bard a pack of thieves. (1) I graduated in the top of my class from a first-tier law school, have just about any credential that a top-tier lawyer can have, work for what is arguably the biggest and most successful predominantly plaintiff law firm in Indiana. Along your lines, I should have my own private jet that flies me to my estate next to the Lilly family every night. Sadly, and in stark contrast to what you say, I drive a 2001 Grand Prix that only has power steering in one direction. My wife drives a pretty nice car, but that is from her family-who got their money through banking rather than law. The profit for attorneys-especially personal-injury attorneys-is not even close to what you might think it is.Most plaintiffs firms that make a lot of money do so on volume. And even for them, it is really the two or three guys at the top who make a lot-not the 100 blokes like me who work for them.I will guarantee, absolutely grantee, that my brother the union blue-collar welder makes more money than 90 of personal injury plaintiff and defense attorneys. Moreover, he probably has 40-50 days a year off and got to start making big money at 18 rather than after 8 years and $250,000 worth of post-high school education. Admittedly, the ten percent of attorneys that make more than my brother make considerably more (probably in the magnitude of ten-to-twenty times), but they do so because they have a bunch of suckers like me working for them and profit off of the volume. Also, there are some Merger and Acquisition and Patent law lawyers who earn/steal (depending on your perspective) jaw-dropping salaries, but they constitute one percent of one percent of attorneys.Bottom line, I can say with 100% confidence that no one is going to get rich off this case.(2) The individual crew members will have their own attorneys-but they will be paid for by the FEC. It may or may not be right that they are sued, but they are being sued for very hard to explain strategic reasons that have everything to do with FEC paying and they will never pay a dime out of their own pocket.(3) What is your alternative to the system? Although I am loathe to admit political beliefs on the forum, I share your purported anti-bureaucratic ideals. Sure, Europe doesn't have the same legal system as the United States, but it is substituted with a billion bureaucratic hurdles that you and I think are not the right way to go. Just how do we determine who gets compensated for injuries if not by this system?The complex rules that you complain of-the vast majority of which have existed for well over 200 years-reflect the need to work with and interact with a very complex society. I would be willing to bet that if you really sat down and thought about them, you would think differently of them.I am sure you are shaking your head at me right about now, assuming you didn't stop reading . . . But, I can promise you one thing, when my brother comes and visits me in a vehicle that is worth 7 times mine and is on one of his month-long slow down no-work periods, and I can only spend a half-day on Sunday because I have to go into the office so I can make the payment on my house in the ghetto, I am going to have an awfully hard time seeing things your way.Gabe
OK, Gabe, you aksed what my alternative would be. And you were very right about the head shaking part. I had to laugh that I was actually doing it.
First, this is nuts:
One time only the general rules of commenting on personal injury (tort) law involving railroads
1) Most states use comparative risk (a few such as my state, Virginia, still use common law contributory negligence). Comparative risk actually originated in use with the Federal Employees Liability Act (FELA) as a way to get rid of inputed contributory negligence and the common servant rule which made it almost impossible for any railroad employees to collect against their employers. Thus, with the vast majority of railroad injuries comparative negligence will be used. If you do not know what comparative negligence means, it means that if the defendant is found to be negligent, damages will be accessed (say $1,000,000 for example). Then, the negligence of the plaintiff will be accessed - say in this example, the plaintiff was found to be 50% at fault. In that case, in almost all states (and FELA) the plaintiff would collect $500,000. If the plaintiff was found to be 75% at fault, in some states the plaintiff would collect $250,000 - others (which require the plaintiff to be less than 50% at fault) nothing. If plaintiff was 25% at fault, the plaintiff would collect $750,000 If contributory negligence is used, if the defendant is 99% at fault, the plaintiff will collect nothing.
2) Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building). In most accidents both parties will be blameworthy.
3) The defendant's negligence is measured using what is called the Hand Formula, from United States v. Carroll Towing - named after the opinion's author, Judge Hand. A defendant will be negligent if the cost of their burden exceeds the probability and the damages. In many railroad accident cases, the potential damages are very large - the probability varies by location - if there was street running down 5th Avenue in New York City, the odds of an accident would be very high. A high risk of accident would also take place at a grade crossing between a busy rail line and a busy highway. A rural crossing between a lightly used branch line and a lightly used road will have a much lower probability of an accident. A place where the rail line and roads/sidewalks have grade separation has an even lower probality of accident. Thus, the burden that the railroad has to prevent accidents will be much higher the busier the crossing.
4) For the purposes of tort law, whether a crossing is legal or illegal but known matters very little. In both cases, the burden may attach to the railroad - thus, if there is a known highly appealing unauthorized pedesterian crossing, merely putting up a "no trespassing" sign may not be sufficient to prevent legal liability. In such a case, fencing might be appropriate and cost effective.
5) Certain risks are so great either due to probability or burden that what is called strict liability is supplied - the classic textbook example is blasting. Attempts have been made to make rail transportation of hazardous chemicals subject to strict liability, but they have failed thus far.
6) The fact that someone is a trespasser does not relieve a party's responsibility to provide steps to minimize injuries and cannot be used to defeat "gross negligence." The duty of care will vary whether a person is an unknown or known trespasser - but there will always be a limitation on the use of deadly force such as traps or spring guns. The doctrine of "attractive nuisance" applies. In most railroad cases, the question is whether the location was a spot known for having trespassers - if so, the railroad may have had the obligation to take steps to prevent trespassers from using that spot. Obviously, an operating train can result in death.
7) Tort law is all about accessing responsibility (especially in comparative negligence regimes). Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.
Unless the railroads are to only hire MofW people with law degrees, how could they possibly comply with this. It is impossible to determine the "probabilty" of an accident such as this. The woman could have run in front of a locomotive anywhere on the railroad. ALL spots on the railroad have trespassers. What are you going to do, station a railroad cop every 30 feet?
Specifically:
1) An adult is responsible for their own safety. If they run across a road or railroad without looking and after disableing their own hearing it's their own fault. Period.
2) There needs to be a defined, concise, readable, understandable, established standard. If the railroad complies with that standard it can not be held liable. Period. Right now, no one can understand what they have to do. It gets established after the fact. In front of a jury that knows absolutely nothing about railroading and can be swayed easily by a lawyer and tears.
3) The "Contributory Negligence" idea should be scrapped. It's like someone could be found 50% guilty of a crime. There is no objective standard that anyone can underestand or meet. No one can understand exactly what they should do. All the plaintif has to do is ask for $30 million. If the jurry somehow, with no standard, concludes the railroad was 10% at fault they collect $3 million. Again, the railroad doesn't have unlimited resources and that $3 million could have been used elsewhere.
4) Including actions against the crew should be done away with. I'm glad to hear that the railroad will pay their lawyers - but that's just more limited resources *** away. I hope you're right and they will never pay a dime out of their own pocket. But why go through the motions and literally torture these guys. They are named in an action that could destroy them finacially. I hope they are the kind of people who can ignore it, believe it when the lawyer says they don't have to worry, and get on with their lives.
On the other hand they may lay awake at night for months or years on end, wondering if they might be the exception. To lawyers its just another case, to these guys, it's their lives.
greyhounds wrote: Specifically:1) An adult is responsible for their own safety. If they run across a road or railroad without looking and after disableing their own hearing it's their own fault. Period.
It is not that simple. It may seem that simple to those who are familiar with trains, who know that trains always have the right of way, and know that railroads own their private right of way. But the trains are a hazard to the public, and claiming that the hazard is on private property does not completely offset the railroad's responsibility to protect the public from the hazard.
gabe wrote: Soo 6604, My right arm is considerably more muscular than my left . . . Fortunately, the only time you really need power steering is at extremely low speeds, and I can muscle the wheel at such speeds. I now know why they made old-time steering wheels so big--to provide extra leverage to compensate for the absence of power steering . . .Gabe
Thanks to Chris / CopCarSS for my avatar.
Bucyrus wrote: greyhounds wrote: Specifically:1) An adult is responsible for their own safety. If they run across a road or railroad without looking and after disableing their own hearing it's their own fault. Period. It is not that simple. It may seem that simple to those who are familiar with trains, who know that trains always have the right of way, and know that railroads own their private right of way. But the trains are a hazard to the public, and claiming that the hazard is on private property does not completely offset the railroad's responsibility to protect the public from the hazard.
Tis' not what I said.
I said if an adult crosses a road (public) or a railroad (usually private) without: 1) looking, and/or 2) after disableing their own hearing they are at fault. I did not say that the railroad had no responsibility to make it tracks and trains visible or to honk when adviseable.
vsmith wrote:
I am not necessarily in disagreement with most of your points. And, as an aside, tort reform has done a lot to get rid of contributory negligence.
The only point that I really feel the need to emphasize is that everyone assumes that, because she is filing a lawsuit, the winning lottery ticket just fell into her hand. That is not the case.
20 years ago, looking at things simply from a dollars and cents perspective, I would have taken her case. Back then, everyone settled lawsuits and if you had a case with $10,000,000 in damages and a 5% chance of recovery, it wouldn't be out of the realm of realistic possibilities to see a $1,000,000 settlment. All of that has changed. 95% of companies fight everything--even if they know they are liable.
The perception that any claim that an attorney will not get sanctions for filing is going to make you rich is really outdated. Things just are not that way any longer. It is particularly frustrating for me, as I have to deal with it from both ends--as it is nearly impossible to communicate to a client that they are not going to get a get-rich settlement in two months simply because we file a case. Every joker who has a hangnail thinks they have a $250,000 claim.
P.S. The rule you advocate is more or less the rule for railroad crossing injuries . . . with some exceptions.
greyhounds wrote: Bucyrus wrote: greyhounds wrote: Specifically:1) An adult is responsible for their own safety. If they run across a road or railroad without looking and after disableing their own hearing it's their own fault. Period. It is not that simple. It may seem that simple to those who are familiar with trains, who know that trains always have the right of way, and know that railroads own their private right of way. But the trains are a hazard to the public, and claiming that the hazard is on private property does not completely offset the railroad's responsibility to protect the public from the hazard.Tis' not what I said.I said if an adult crosses a road (public) or a railroad (usually private) without: 1) looking, and/or 2) after disableing their own hearing they are at fault. I did not say that the railroad had no responsibility to make it tracks and trains visible or to honk when adviseable.
Sorry if I did not make this clear. When I said that it is not that simple, I was referring to your statement as follows:
"1) An adult is responsible for their own safety. If they run across a road or railroad without looking and after disableing their own hearing it's their own fault. Period."
When I mentioned that railroads have some responsibility to protect the public from their hazards, and that responsibility is not completely offset by the fact that railroads are private property, I was referring to a larger general principle that might include the act of someone inadvertently stepping into the path of a train as you cite in your example of an adult's responsibility.
As to your example specifically, what if the person had no sense of hearing? Or was blind? Or both? Or what if they were not aware of the full implications of the hazards of the existence of the railroad beyond just a raised area with some rails? What if they were not aware of the danger of passing trains? What if their vision was obscured by standing freight cars?
Or what if this pedestrian strike were not just at any one of an infinite number of random locations along the railroad, but rather, at a specific point where pedestrians routinely and frequently crossed the track to get to a public jogging path, and frequently began their jogging routine prior to crossing the track?
What if the railroad company had become aware of this crossing point used by joggers, and had noticed that they frequently are listening to I-pods, and appear to cross the tracks oblivious to the danger, while apparently engrossed in their typically mind numbing jogging routine?
Bucyrus wrote: ........what if this pedestrian strike were not just at any one of an infinite number of random locations along the railroad, but rather, at a specific point where pedestrians routinely and frequently crossed the track to get to a public jogging path, and frequently began their jogging routine prior to crossing the track?What if the railroad company had become aware of this crossing point used by joggers, and had noticed that they frequently are listening to I-pods, and appear to cross the tracks oblivious to the danger, while apparently engrossed in their typically mind numbing jogging routine?
........what if this pedestrian strike were not just at any one of an infinite number of random locations along the railroad, but rather, at a specific point where pedestrians routinely and frequently crossed the track to get to a public jogging path, and frequently began their jogging routine prior to crossing the track?
I have a hard time agreeing with you on this train of thought. What if the railroad company had become aware of this crossing point used by teenagers to play chicken with the trains? Wearing I-pods? At night? While intoxicated? I don't see how the railroad somehow takes on super-liability for other's irresponsible actions.
Murphy Siding wrote: Bucyrus wrote: ........what if this pedestrian strike were not just at any one of an infinite number of random locations along the railroad, but rather, at a specific point where pedestrians routinely and frequently crossed the track to get to a public jogging path, and frequently began their jogging routine prior to crossing the track?What if the railroad company had become aware of this crossing point used by joggers, and had noticed that they frequently are listening to I-pods, and appear to cross the tracks oblivious to the danger, while apparently engrossed in their typically mind numbing jogging routine? What if the sky falls down, and all the trees are broken? I have a hard time agreeing with you on this train of thought. What if the railroad company had become aware of this crossing point used by teenagers to play chicken with the trains? Wearing I-pods? At night? While intoxicated? I don't see how the railroad somehow takes on super-liability for other's irresponsible actions.
I don't know how this liability pie will be sliced and diced in this case. My larger point is that I don't believe that it is a forgone conclusion that railroads are automatically always right in these types of cases even though the preponderance of popular sentiment is sure of that.
I mentioned that the point where the woman got hit might have been a frequently used crossing point for distracted joggers (as is suggested in the article I linked). You ask why that matters, and ask how it would differ from a point where teenagers play chicken with trains or engage in other illegal behavior. It is true that my example and your hypothetical example are identical in terms of trespass. But trespass and other illegal behavior (no matter what kind) is not the point of my questions about the location where the woman was hit. My point was that the crossing point had become routinely and frequently used, and furthermore, that the railroad may have become aware of that use.
The routine use of the crossing point that had become physically developed as a pathway used in conjunction with a public trail system may have developed in a way that caused users to become habituated and less wary than they would normally be. And because railroad crews and officials are expected to be vigilant about conditions along the track, they might be expected to have become aware of the routine use of this crossing point. If so, they ought to conclude that the concentration of illegal crossing activity might pose a higher risk of injury or death to pedestrians than what would exist otherwise along the track. So the railroad's awareness of the increased danger and their failure to do anything about it (if both are true) may have increased their liability.
Bucyrus wrote:. My point was that the crossing point had become routinely and frequently used, and furthermore, that the railroad may have become aware of that use. The routine use of the crossing point that had become physically developed as a pathway used in conjunction with a public trail system may have developed in a way that caused users to become habituated and less wary than they would normally be. And because railroad crews and officials are expected to be vigilant about conditions along the track, they might be expected to have become aware of the routine use of this crossing point. If so, they ought to conclude that the concentration of illegal crossing activity might pose a higher risk of injury or death to pedestrians than what would exist otherwise along the track. So the railroad's awareness of the increased danger and their failure to do anything about it (if both are true) may have increased their liability.
Greyhounds, Murphy...
Here are a few things the plaintiff will have to establish before she wins a dime.
First, she will have to convince a jury she didn't know she was trespassing, and the fact that she routinely used that same crossing, along with a lot of other joggers and other citizens, will go a long way in convincing a jury of this, and especially if she can show the railroad knew the crossing existed, but did nothing to prevent its use.
Yup, there is a no trespassing sign, at least in the film clip, but certain states, mine among them, require such signs meet a standard in size and regular placement, and we don't know if this sign meets the legal requirements, or if it was even placed at the spot she trespassed an was hit at.
Second, if she can show the railroad did nothing to prevent the use of this crossing, then the law, (again, in my state) assumes the railroad condones the casual use of the crossing, which make the carrier liable.
Third, she will have to show the train crew did not take the appropriate actions once they saw her in danger...and as other railroad employees pointed out, putting the train into emergency braking or even slowing down every single time you see some one near the tracks or someone you think might cross in front of you is not a real world option for us...so she will have to show they did nothing beyond blowing the horn before she was hit...and the defense will have a hard time explaining to a jury why we don't slow down.
Remember, most people don't have a clue as to how a train works, nor a grasp on train handling and train dynamics, so showing the "black box" data where the train doesn't go into emergency braking till after she is hit will work in her favor.
Here in Texas, this is some of what you have to do to protect your "right" to your private property.
First, if the property has any boundary that can be accessed from public property, you must post no trespassing signs of a standard size and with a standard disclaimer.
Like most states, there is an entire law devoted to just such standards.
Second, you must post these signs at a regular interval facing the public access portion; here it is every fifty feet.
All public access points must have the signs...if you have two or more places, they all have to have it...if one side does, but the other place doesn't, you are out of luck.
Of course, railroads can't put signs on both sides of their entire right of way, and there is the legal assumption that most people recognize the hazards involved with being on railroad tracks, but you must make a concerned and active effort to discourage trespass.
You must maintain these signs...if they fade, become illegible or fall down, you must replace them.
If your property is fenced, the signs must be affixed to the fence, if no fence, they must be affixed to poles at eye level, (again, an entire statue is devoted to what eye level means).
If there is what the law calls an attractive nuisance, say a local swimming hole or fishing spot, (or path/crossing)you must take steps to discourage its use, up to and including removing the attraction, or fencing it in, possible patrolling the area.
In the instance of railroad trespassing, if a railroad in Texas knows trespassers routinely use a spot, they are required to patrol the area, fence it off or make it un-usable and issue citations and such, to establish a precedent that they are actively discouraging trespass at that location.
At the yard where I work, trespassing was a big issue, and a daily event...our yard intersects an old neighborhood and a major street, so the folks who live in the "hood" simply walked across the yard to get to the street.
Mornings and early afternoon were the worst, because all the school kids would cut across the yard to get to or from the school bus stop.
We posted signs, in both English and Spanish, but they simply ignored them, and with a yard this big, with public access along Wayside drive almost a mile long, catching them was not really feasible.
Our solution was this.
We fenced the yard off, with a ten foot high chain link fence, topped with razor wire, on all sides.
At they north end, where Market street crosses our yard throat, we brought the fence to within a few feet of the tracks.
Then we installed openings, one on each side of the yard, clearly marked with signs in both languages, stating that entering this area was illegal, and you will be arrested.
The signs included the Texas standard no trespassing language also.
On both sides of the fence, there are signs that state these are emergency exits only.
Both of these opening are clearly and easily visible by all the switching crews and the yardmaster in the tower.
When ever we see someone entering one or the other, we call the gumshoes...who then drive up, and hide next to the opposite opening...the folks in the hood learned quickly that the razor wire was really not what they wanted to climb over, so they did the easiest thing, they walked to the openings, where they were promptly arrested, taken down to the police station, booked on trespass, issued citations and all that.
These openings are not disguised in any way, they are sections of the fence not installed in the first place, so there is no way they can be confused as "accidental", they are signed to the max, and clearly marked as emergency exits, so the defense of entrapment fails.
We have gone from daily trespass to maybe once a month.
In this case, the railroad will have to prove that the woman knew she was trespassing, and that she intentionally hindered her hearing with the Ipod...and you can bet your last dollar if the plaintiff's attorney is worth a dime, the jury will have quite a few athletic young women who jog and wear their ipods sitting on it.
They will also have to show they took proactive actions to stop trespassing at this location, and that such actions conformed to the laws of Florida in that regard.
All of that said, you, myself, and most of the forum members already know the inherent dangers of railroad tracks and trains...and we assume that anyone with an IQ over 5 does too.
The "law" makes such an assumption too, but with limitations.
Sadly, the general public is indeed very ignorant of the dangers posed by trains...I would guess most folks would be ignorant of most industrial dangers simply because they are not exposed to them on a daily basis, nor are they educated about them...which is why we have some of the laws we are discussing.
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TO ZARDOZ:
Sorry for my delay in getting back to you. Definitely no need for YOU apologizing to me. I Get so much information from your posts, and find you well informed no matter what subject is being discussed.
Murphy Siding wrote: Bucyrus wrote:. My point was that the crossing point had become routinely and frequently used, and furthermore, that the railroad may have become aware of that use. The routine use of the crossing point that had become physically developed as a pathway used in conjunction with a public trail system may have developed in a way that caused users to become habituated and less wary than they would normally be. And because railroad crews and officials are expected to be vigilant about conditions along the track, they might be expected to have become aware of the routine use of this crossing point. If so, they ought to conclude that the concentration of illegal crossing activity might pose a higher risk of injury or death to pedestrians than what would exist otherwise along the track. So the railroad's awareness of the increased danger and their failure to do anything about it (if both are true) may have increased their liability. I agree to your point that nothing is ever black & white, more likely shades of grey. I'm still not convinced that a railroad's knowledge that people are more likely to do illegal and risky things near the tracks makes them more liable for those people's behavior. What would you expect the railroad to do about those people's behavior? And where would you stop?
I think the point is that it is easier to defend your failure to protect the public from a hazard on your property if you can prove you did not know about the hazard.
I do not know what action that FEC could have taken to protect the public (if this trail crossing had in fact developed and was frequently used) in a way that would have minimized their liability. No trespassing signs, or signs warning about the imminent danger of moving trains, fencing or barricades at that specific spot, perhaps fencing extended some distance on either side of that spot, or notifying the police and asking them to keep an eye out for pedestrians crossing the tracks, having their own police keep an eye on it, start issuing citations to the pedestrians-any or all of these things would demonstrate diligence to protect the public from hazard inherent in crossing the tracks at that location.
I have a trail nearby which is built on the old M&StL main line. There are deep cuts and high fills where it drops down into the Minnesota River valley. The fills, about 80 feet high, offer impressive views into the valley. The park board put up ugly chain link fences on both sides of the trail where it crosses the fills, and it totally destroyed the wild, exhilarating, and lofty feel of crossing the fills. I asked the manager why they did that. He told me that park board or county officials touring the area reported vertigo, so they sensed a hazard to bicyclists in case they went off the trail on one of the fills.
I asked him why they used so much fence since it appeared that perhaps 1/3 the amount of fence they used would have sufficed to protect the hazard. He told me that when you build a fence to protect a hazard, it is advisable to build a really big fence. He said the fence needs to be extra size beyond what is actually needed to make up for the fact that when you build a fence around your hazard, you are admitting that you know about the hazard, and knowing about the hazard makes your liability higher than if you don't know about it. So building the fence first increases your liability, and then overbuilding the fence compensates for the increase by reducing your liability.
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