Railroad crossing accident reduction: fact or fiction?

By Larry Henley
Jackson County Herald-Tribune
September 16, 2009

The federal railroad regulator, the Federal Railroad Administration, and the entire railroad industry has been bragging for the past several years about the remarkable achievement they have made toward reducing the number of collisions between trains and motor vehicles. At the request of several noted attorneys and newspapers throughout the country, I decided to take a long look at this “accomplishment” to determine its validity.

Let’s examine the national statistics first. Incidentally all of the statistical data included in this narrative came from the Federal Railroad Administration’s Office of Safety Analysis. The FRA first began maintaining records of crossing accidents in 1975. From Jan. 1975 through May 31, 2009, there has been a total of 213,814 crossing accidents which were reported by the railroads to the National Response Center (as required by law). Closer examination reveals that 20,421 people were killed in these accidents and another 79,469 were injured.

During this same period there have been 22,290 crossing accidents reported just in the State of Texas in which 2,031 Texans were killed and another 9,122 were injured.

As far as I know, these statistics are valid. After all, they came from a government agency and was given to them by the railroads. But even I was a little surprised to learn that this data obtained exclusively from information provided by the railroad involved in the crossing accident, and not from law enforcement investigative reports. Is it any surprise to find that in over 90% of all incidents the cause of crossing accidents is attributed to the motor vehicle driver’s “reckless driving behavior or inattention?” That is unless the victim or the victim’s survivor(s) retains an attorney who concentrates his or her practice in railroad crossing accident litigation and has at his or her disposal an investigator/ consultant with vast knowledge of railroad operation and the laws pertaining to rail transportation. Then for some inexplicable reason culpability for the crossing accident changes from driver negligence, to railroad culpability.

The greatest number of reported crossing accidents occurred in 1978 when 13,557 crossing accidents including 1,064 deaths and 4,447 injuries occurred. This number declined dramatically to its lowest mark in 2003 when there were only 2,977 crossing accidents reported with 334 deaths and 1,035 injuries.

So, yes according to these statistics the FRA and the entire railroad industry has accomplished a remarkable achievement.

But before we start clapping our hands too hard, let’s look at a couple of other factors.

In 1994 the U.S. Department of Transportation and the Federal Railroad Administration along with the railroad industry established a goal to reduce grade crossing fatalities by 50% over the following decade. Incidentally in 1994 626 fatalities were reported. According to the data received from the railroads, the number of collisions declined by 39% and the number of fatalities fell 47% to 334 in 2003. Pretty darn good if you ask me.

But let’s examine a statement made by Inspector General Kenneth Mead before the U.S. House Committee on Transportation & Infrastructure on July 21, 2005, first. Mead reported that most of this progress was achieved due to the closing of over 41,000 grade crossings throughout the U.S. and installing automatic gates and flashing lights at about 4,000 railroad grade crossings with a high probability for collisions. Unfortunately Mead’s report failed to say how many of these 41,000 closed crossings were protected by sophisticated crossing signals, i.e. gates, flashing lights, etc., and what became of that equipment. Wouldn’t it stand to reason that “some” of these closed crossing had automatic crossing signals? At an average cost of $100,000 to install crossing signals per crossing which coincidentally is paid by taxpayer dollar, this represents a pretty good chunk of change.

While I applaud the installation of automatic signal equipment at any railroad crossing where the need exists, it should be remembered that automatic warning devices at railroad crossings do not prevent all crossing accidents! Nearly half of all crossing accidents reported during this period occurred at crossings with active warning devices.

Unexpectedly the number of crossing accident fatalities started climbing in 2004. The number of deaths rose 11% to 368. To explain this to the Committee, Mead commented that the “FRA picked low hanging fruit and additional gains will be harder to achieve.” This obviously is the case since the number of fatalities and injuries from crossing accidents is still climbing, or at least remains constant. There have been no further declines in the number of reported crossing accidents, deaths or injuries.

An audit was made of the reported collisions between trains and motor vehicles that disclosed 21% of serious crossing collisions were not being reported – let alone in a timely fashion. This report went on to add that 115 out of 543 serious grade crossing collisions that occurred between May 1, 2003, and Dec. 31, 2004, were not reported in the FRA’s database. Of this number of unreported crossing collisions, it was stated that there had been 116 fatalities. Small wonder that the statistics indicated a substantial decline? In fairness it should be said that these collisions were eventually reported to the FRA 30 to 60 days after the collision occurred and certainly too late for the FRA to make a comprehensive investigation of the accident.

This report criticized the FRA for its failure to properly investigate railroad crossing accidents and strongly recommended the agency needed to improve its involvement in these investigations. For example, it is reported the FRA investigated a total of nine crossing collisions in 2004 out of 3,045 reported crossing accidents. Between 2000 through 2004, the FRA investigated 47 of the 376 most serious crossing collisions. There was no federal investigation of the remaining 329 serious crossing collisions which caused 159 deaths and 1,024 injuries.

The FRA responded by saying the National Transportation Safety Board was the lead federal investigator for transportation accidents and it was their responsibility to make these investigations! Statistically the NTSB investigated a total of seven crossing accidents from 2000 to 2004. The FRA currently has 430 accident investigators and has received approval to increase the number of investigators to 800.

The report concluded that information the FRA gets concerning causes of crossing accidents therefore comes exclusively from self-reporting by the railroads. How convenient?

In recent years most of the railroads have been automatically filing claims against motorists involved in crossing accidents not only for damages, but for the amount of time the railroad cannot use the track, the time for train crews, loss of use of the railroad equipment damaged in the accident, etc. Most of these claims culminate when the collision is between a train and a truck.

Larry Henly is a 28-year railroad employee and former operation officer for Union Pacific Railroad, a retired certified peace officer and lives in Victoria.

This article is reprinted with permission from the author, Larry Henley. Mr. Henley is a retired railroad employee and currently spends his time working to promote railroad safety. He is not employed by Bailey & Galyen.

THE GREAT RAILROAD SUCCESS STORY

A reduction in grade crossing accidents

By Larry Henley

The nation’s railroad regulator, the Federal Railroad Administration, started publicizing grade crossing accident statistics through its Office of Safety Analysis in 1975. Since 1975 through May 2009, 213,814 grade crossing accidents have been reported by the railroads nationally which resulted in 20,421 fatalities and 79,469 injuries to Americans. During this same period 22,290 crossing accidents have occurred in Texas, the state with the most railroad mileage, resulting in 2,031 fatalities and 9,122 injuries.

In 1994 there were 626 fatalities reported from crossing accidents. The U.S. Department of Transportation in cooperation with the railroad industry established a goal to reduce grade crossing fatalities by 50% over the following decade. At the end of 2003, fatalities fell 47% to 332 and the number of collisions declined by 39%.

By the number of crossing accident fatalities rose 11% to 368 in 2004. In a statement to the House Committee on Transportation and Infrastructure in July 2005, Inspector General Kenneth Mead reported “most of the success in the FRA realized was due to picking low hanging fruit and additional gains will be harder to achieve!”

Mead told the Committee that much of this decline was due to the closure of about 41,000 railroad crossings along with the installation of automatic warning devices at about 4,000 railroad crossings which had a high probability for collisions. At $100,000 per crossing required to install automatic crossing signals, this represents approximately an expenditure of $400 million, all paid by taxpayer dollars. Mead also noted that nearly half of all crossing accidents that occurred were at crossings with active warning devices.

An audit of these statistics also revealed 21% of serious crossing collisions were not being reported – let alone in a timely way. 115 of 543 serious grade crossing collisions which occurred between 5/1/2003 and 12/31/2004 in which 116 people were killed, had not been reported to the FRA’s database.

Almost all of the information used to analyze crossing accidents comes directly from the railroad itself! These reports attribute 91% of all train-vehicle collisions to the “recklessness or inattentive behavior of the driver.” Recent court decisions and settlements have indicated differently. But, the law is quite simple: If you can see or hear a train, you must yield the right of way.

The investigation of crossing accidents must be upgraded. The FRA was criticized because they investigated only nine out of 3,045 crossing collisions in 2004, and 47 of the 376 serious crossing collisions between 2000 and 2004. Grade crossing laws must be enforced along with the requirement that train whistles are sounded sufficiently in advance to warn motorists.

Much more work is needed for this to be a true success story.

This article is reprinted with permission from the author, Larry Henley. Mr. Henley is a retired railroad employee and currently spends his time working to promote railroad safety. He is not employed by Bailey & Galyen.

Congress Helps Victims of Dangerous Railroad Crossings

One of the obstacles we have historically faced when trying to recover compensation for our clients involved in railroad crossing accidents is a legal doctrine called “federal preemption.” Both state and federal courts had restricted the rights of those injured and killed at dangerous railroad crossings to recover for their losses. Federal preemption, at least in theory, was intended to create a uniform system of minimum safety standards throughout the country. Sadly, the doctrine of federal preemption was corrupted to the point of giving railroads immunity from responsibility for their negligence.

A typical example of federal preemption at work in Texas involved a passive crossing, that is a crossing with only the white “X” shaped sign that says “railroad crossing”. Active crossings have flashing light signals and gates that come down when a train approaches. According to a body of case law developed by courts over a number of years, if federal funds contributed to the installation of the railroad crossing sign, also known as a crossbuck, then anyone hit by a train at that crossing could not claim that the railroad was negligent for failing to install lights and gates at the crossing. The so-called “inadequate signalization” claim was said to be federally preempted.

Now is a good time to bring up a dirty little secret regarding the railroads. You might be wondering why federal funds would be used to put up a sign at a railroad crossing. The truth is that the railroads spend little or nothing to install warnings, including lights and gates, at most crossings. Your tax dollars, state and federal, typically pay 90% to100% of the cost to install warning devices at railroad crossings. Incidentally, the CEO of BNSF was paid $12.6 million last year, and the CEO of Union Pacific was paid $9.8 million.

Although we have had no indication that railroads will start spending their own money to make railroad crossings safer, Congress passed an amendment last year to the Federal Railroad Safety Act that should once again permit those injured and killed at hazardous railroad crossings to sue the railroads for negligence. The amendment was included in the implementing recommendations of the 9/11 Commission Act, which the President signed into law last August. The amendment clarifies that preemption under the FRSA is limited and that state injury law claims may be pursued if the railroad violates federal safety standards, including Federal Railroad Administration regulations.

The FRA requires a crossing to be equipped with flashing lights and gates if one or more of the following hazardous conditions exists: (1) multiple mainline railroad tracks; (2) multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure movement of another train approaching a crossing; (3) high speed train operation combined with limited sight distance at either single or multiple track crossings; (4) a combination of high speeds and moderately high volumes of highway and railroad traffic; (5) either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions; and (6) a diagnostic team recommends them.

Why did Congress pass this amendment? On January 18, 2002, a train derailed in Minot, North Dakota and released extremely toxic ammonia gas from damaged tanker cars. Under the doctrine of federal preemption, those injured by inhaling the toxic gas had no cause of action against the railroad. There was no way for them to recover for their injuries. The 2007 amendment to the FRSA was inspired by the Minot disaster and the recognition that federal preemption had been perverted to immunize railroads from all responsibility for harm caused by their own negligence. The 2007 amendment to the FRSA has reopened the courthouse door to victims of hazardous railroad crossings and others injured when railroads are not reasonably careful in operating their business.

Three Deadly Myths About Train Accidents

After someone has been killed in a train crossing accident, people often wonder how it could happen. Why didn’t the driver see and stop for the train? This question arises out of commonly held but incorrect beliefs about train crossings: deadly myths.

Myth # 1: Railroad Crossing Accidents are Rare

The Federal Railroad Administration (FRA) defines “Highway-Rail Grade Crossing Incident” as any impact between a rail user and a highway user at a “designated crossing site.” A train hitting a car, truck, or motorcycle at a crossing would be a reportable “incident.”

Last year, 2,395 crossing collisions were reported to the FRA nationally, resulting in 287 deaths and many more injuries. Texas was an unfortunate leader in those statistics, with 228 collisions and 17 deaths in 2008. As you consider these statistics, keep in mind that the accuracy of the FRA’s information depends upon the data collection and reporting processes of the nation’s railroads. The FRA admits: “It is not possible to identify reportable events that were omitted from a railroad’s submission.” In other words, the numbers could actually be even higher.

Myth #2: Drivers Can Always See An Approaching Train

Trees, vegetation, buildings and other structures along a road leading to a crossing can block a driver’s view of an approaching train. If the road intersects railroad tracks at a skewed angle, the driver might not be able to see an approaching train. Where more than one track is present at a crossing, a parked locomotive and/or rail cars on one track can obstruct the view of an approaching train on the other track.

The American Association of State Highway Officials recognized the importance of site distance to crossing safety as least as far back as 1954: “Site distance is a primary consideration at crossings without signals or gates. The condition at a railroad grade crossing is comparable to that of intersecting highways where a corner site triangle must be kept clear of obstructions.” Drivers must not only be able to see an approaching train, but have enough time to stop before reaching the track.

Myth #3: Crossing Collisions Occur Because the Driver Broke the Law or Tried to Beat the Train

Drivers in Texas approaching a railroad crossing equipped only with the familiar “Railroad Crossing” sign, known as a “crossbuck,” are required to yield the right-of-way to a train in “hazardous proximity” to the crossing. Although it might seem obvious, Texas courts have recognized that drivers must have a reasonable opportunity to learn of a train in hazardous proximity to a crossing before they can be expected to yield the right-of-way. As at least one court has noted, “[e]very railroad crossing is a place of danger.” However, Texas law recognizes that some crossings are “extra-hazardous.” A crossing is extra-hazardous if it is “so dangerous that persons using ordinary care cannot pass over it in safety” without some warning other than the crossbuck sign.

A crossing may be classified as extra-hazardous if a permanent condition (such as a building), or a temporary condition (such as parked railcars), obstructs a driver’s view of an approaching train. The railroad has a duty to use extraordinary measures to warn drivers of an approaching train at extra-hazardous crossings. Extraordinary measures might include gates, signal lights, bells, or a railroad employee waiving a flag. The railroad may be held responsible if the failure to provide such warnings results in a collision with a vehicle attempting to cross its tracks. In other words, a crossing accident may occur not because the driver was careless, but because the railroad was careless in failing to provide adequate warnings at an extra-hazardous crossing.

Family Members Promote Change After Deadly Crossing Accident

Sunday was the two-year anniversary of the crossing accident involving a stolen SUV full of kids that hit a train stopped on Archer Road in east Harris County near Baytown, Texas.  Four teenagers died in the crash and family members of some of the victims are pushing for changes that could save others.

Some things at the intersection have already changed.  A new crossing arm has replaced the old sign that was there, and better lighting has been installed.

It was a dark summer morning when the SUV packed with kids smashed into a Union Pacific train parked at the crossing.  Loral and Macy Moyers were just two of four teens killed in that wreck.  Their grandfather, Donald Moyers, is on a mission to promote train safety.  “Any movement that I may start is not to hurt the railroad companies, but to help them,” Moyers said.  Moyers would like to make trains more visible at night, proposing replacing current yellow markings on railcars with red ones signifying what he believes would be a clearer stop.  “It should be horizontal,” he said.  “It should be the length of every single car on both sides.”

Moyers also wants railroad companies to require these markings before any railcar is allowed on the tracks.  It’s a goal he hopes prevents other people from experiencing his same kind of pain.

Union Pacific said the Federal Railroad Administration (FRA) sets guidelines for the markings and that each car meets those guidelines.  They also say their thoughts and prayers are with the families of those four teens.

The driver, Bobby Davis, is serving eight years in prison for the crash.  He pleaded guilty to four counts of manslaughter and is presently serving his time in a juvenile facility.  When he becomes an adult, he will either be sent to prison or released on parole.

New York Train Derailment

A CSX freight train crossing Factory Street in Gouverneur derailed shortly after 1:00 p.m. June 19.  A source at the scene indicated that the cars were loaded with steel inbound to Cives Steel in Gouverneur.

It appears the loaded cars were simply being moved to a different set of tracks in between Scotch Settlement Road and Factory Street when the derailment occurred.

A representative from CSX indicated that the 12-car train was serving local industry between Watertown and Gouverneur.  CSX confirmed that the three derailed cars were bound for Cives Steel in Gouverneur and that a portion of the track was peeled over, though this could have been the result of the derailment and not necessarily the cause.  CSX was still investigating the derailment.

This is the third derailment in St. Lawrence County in the last two months.

Boy On Bicycle Killed By Train

One boy was killed and another was hospitalized in West Virginia following a train accident.  Authorities say a boy under the age of 14 was riding a bike near the Van Clevesville Road railroad crossing when he was hit by a train.

Authorities are still investigating the incident, but say the deceased boy was visiting from another area.  The other boy was taken to the hospital.  Police have not determined why the boys were on the track at the time of the accident.

MARC trains were stopped in both directions while crews cleared the scene.

Most passengers called for someone to pick them up.  One passenger said, “I just want to get as far away from here as I can.  I’m just sick over this.  A child died.”

Mississippi Train-Log Truck Accident

A Canadian National freight train crashed into a log truck in Perry County damaging nearly a dozen box cars and tankers filled with molten sulfur.

Mississippi Highway 198 was blocked for several hours following the accident.

Michael Pol, assistant to Southern District Commissioner Wayne Brown, said he lives near the scene of the accident and arrived shortly after the collision.  The truck was southbound when the train hit it.

Pol said he contacted the Mississippi Department of Transportation rails division to report the incident.  The Mississippi Department of Environmental Quality assisted in the cleanup of debris and spillage from tankers.  According to  Pol, molten sulfur is not toxic unless it catches fire, emitting an acrid smoke.

Zoo Train Derailment Update

New information has been released from the June 1 Louisville Zoo train derailment that left more than 20 people injured.  Apparently the accident happened on the driver’s first day.  The 18 year-old operator of the train had just begun driving the ride by herself.

The investigation to determine what caused the train to derail continues.

This accident is not the first time a train has overturned at the Louisville Zoo.  Another accident happened during Halloween festivities in October 2007, when the front axle broke on one of the rail cars.

Kansas City Southern Train Kills Father of Two

Ruben Lujan of Bruni, Texas is dead after being hit by a Kansas City Southern freight train.  Lujan was traveling to a job site when the accident happened in the small town of Aguilares, 26 miles east of Laredo.  He was driving a Toyota pickup and pulling a generator over the railroad tracks when he was hit on the driver side by the Kansas City Southern freight train.

“Well we saw the truck how it was damaged and the body was laying down on the ground.  Its real tragic it so sad to see something like this happening,” said Hernandez, a family friend.

There are no gates or flashing light signals at the crossing.  Hernandez believes it is the Railroad’s responsibility to install crossing arms and lights to warn drivers when a train is coming.  “Just like any other place that have guards,” said Hernandez.

An employee with Kansas City Southern says the cargo train was heading west when it hit Lujan’s truck.

The Benchmark Distribution Company employee leaves behind a wife and two young children.

Authorities say Lujan was wearing a seat belt when the train hit him.

Kansas City Southern says the crew aboard the train was not injured and the incident is being investigated.