In 1890 the first patent for a diesel engine was issued. Over the next century, more and more industries incorporated this type of engine in equipment and vehicles. One of the main reasons for its popularity was that diesel engines were more energy efficient than engines that ran on gasoline.
Diesel fuel releases less CO2 carbon emissions than gasoline fuel. This is why it became so popular, especially in Europe where the majority of vehicles run on diesel fuel. However, what diesel does emit is Nitrogen Oxides (NOx), which has created a massive pollution problem in many European countries, causing serious health risks.
Diesel engines are used in the majority of vehicles used in the transportation industry, from locomotives to trucks. But multiple studies have concluded that prolonged exposure to the particles and fumes produced by diesel fuel has a hazardous impact on those who work around it.
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And just like other types of hazardous materials, such as asbestos, workers who worked closely with and around diesel were the last to be told of the risks they were being exposed to day in and day out. One of these hazards was the link between lung cancer and diesel fumes.
According to studies conducted by the America Cancer Society, diesel fumes, such as soot, can change the DNA of a cell, leading to cancer. Other studies have found that workers who work around diesel fumes have a higher risk of developing cancer. Some of the professions cited in these studies include railroad workers, heavy equipment operators, truck drivers, and miners. Similar conclusions have been found by studies conducted by the Environmental Protection Agency (EPA) and the World Health Organization (WHO).
If you are exposed to diesel fumes on a regular basis because of your job, there are some steps that may help minimize your risk. These include:
- Stepping away from diesel engines whenever possible, such as during breaks and lunches.
- Discuss with your employer about what can be done to create a safer work environment. Items such as masks and respirators should be supplied to workers. Steps should also be taken to improve ventilation in the work area.
- Any worker who works around diesel engines should make sure their physician be aware of the work environment they are exposed to every day, as well as schedule regular examinations to check for any symptoms related to lung cancer or any other lung diseases. The sooner these conditions are diagnosed, the better the chances are of successful treatment.
Contact a Virginia FELA Injury Attorney
In many cases that involve the tragic illness or death of a railroad employee, the railroad may contact the victim’s family to try to offer a quick settlement. The amounts they offer are usually far below the actual amount the family would recover with the help of a FELA injury attorney. Victims and their families should never sign or agree to any settlement without first consulting with a Virginia FELA attorney.
At Shapiro & Appleton, we have extensive legal experience advocating for railroad workers and their families. If your loved one has been injured or killed in a railroad accident, call our firm today to find out how we can help your family get the legal and financial justice you deserve.
Norfolk Jury Returns $5 Million Verdict in Favor of Client Who Passed Away from Asbestos-Related Lung Disease
Our client, a carman, worked at Norfolk Southern’s Lambert’s Point car repair shop for more than a decade. He serviced and changed out asbestos-containing brake shoes at the shop year in and year out breathing in toxic asbestos fibers. After nearly ten years, Norfolk Southern hired abatement contractors to remove asbestos from the car shop. Our client subsequently became very ill and was diagnosed with a deadly lung disease. He died in 2017 due to complications from the disease. After his death, our client’s daughter obtained an autopsy that revealed asbestos was in fact in his lung tissue. The daughter contacted Randy Appleton, one of the firm partners, who accepted the case after reviewing the autopsy. The railroad denied all liability and pointed to our client’s smoking history as the basis for his lung disease. After a six-day trial, a jury in Norfolk ruled in favor of our client and awarded $5 million in damages (with 80 percent contributory negligence).
Despite continued calls for railroad safety, railroad workers continue to perform their jobs in often dangerous conditions. These conditions frequently result in serious injuries to workers and even more tragically, their deaths. Last year alone, there were more than 25 railroad workers killed while on the job.
Whenever a railroad employee is injured, any compensation is covered under the Federal Employers Liability Act (FELA). FELA was enacted in 1908 to provide railroad workers and their families federal protection and process for legal recovery in the event of injury or death.
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Although FELA offers protections to railroad workers that are similar to workers’ compensation insurance, which protects and provides injured workers in other industries, there is a major difference when it comes to liability. Unlike workers’ compensation, which does not require an injured worker to prove the employer is liable for their injury, FELA is based on a fault-based system. This means an injured railroad worker must prove that their injury was caused due to the negligence on the part of the railroad. However, FELA does allow an injured railroad worker to sue the railroad for damages, which is something someone covered under workers’ compensation cannot.
Wrongful Death and FELA
When a railroad worker dies from their injuries sustained on the job, their family or estate representative can file a lawsuit under FELA to recover damages. The party filing the lawsuit is a personal representative of the decedent, which can be a spouse or close family member although others can serve in that capacity. Please note, the statute of limitations for filing this claim is only three years from the date of injury or death, so it is critical to contact a Virginia FELA attorney as soon as possible.
The exact date will be determined by the type of injury the victim suffered. When the death was caused by sudden trauma, the three-year date is evident, but when the death was caused by a slow-developing injury, such as an asbestos-related illness, it can be much more complex to determine the three-year period. Your attorney will be able to make that determination for you.
The first step a FELA attorney will take is to determine what act of negligence on the railroad’s part or safety violation caused the victim’s death. Once he or she has established the railroad’s liability, they will then determine what compensation the victim’s family can pursue. FELA allows survivors to obtain financial compensation for the following damages:
- The medical, funeral, and burial expenses the family incurred as a result of the victim’s death.
- The pecuniary (financial losses) the family will suffer as a result of the victim’s death. This can include lost future wages, benefits, and services the victim would have provided for his or her family had they survived. Some of the different services the victim provided their family which can be included in a FELA wrongful death lawsuit can include childcare, household duties (i.e. landscaping, home maintenance, etc.), and any other activities the victim provided the family which they will now have to pay someone to perform.
- The pain and suffering the victim experienced from their injuries before they died, including psychological injuries in fear of impending death and conscious pain and suffering.
Unfortunately, the Federal Employers Liability Act differs from typical state wrongful death statute by prohibiting recovery of grief, loss of consortium, and loss of companionship to the surviving spouse or close family members.
Contact a Virginia FELA Wrongful Death Attorney
In many cases that involve the tragic death of a railroad employee, the railroad may contact the victim’s family to try to offer a quick settlement. The amounts they offer are usually far below the actual amount the family would recover with the help of a FELA wrongful death attorney. Families should never sign or agree to any settlement without first consulting with a Virginia FELA attorney.
At Shapiro & Appleton, we have extensive legal experience advocating for railroad workers and their families. If your loved one has been killed in a railroad accident, call our firm today to find out how we can help your family get the legal and financial justice you deserve.
According to statistics from the U.S. Department of Transportation, there are approximately 1,000 people injured in train-related accidents each year. Another 300 people are killed. There are many different types of train-related accidents that occur, but they all have one thing in common: Victims who suffer injuries and losses from these accidents can file train accident claims or lawsuits for financial compensation for their losses. If you or a loved one has been involved in a train-related accident, contact a North Carolina railroad attorney from Shapiro & Appleton immediately to find out what your legal options are.
Different Types of Train Accidents
Train on Train Crash: When two trains crash on the tracks, the results can be horrific. Because of the massive size of trains, the majority of these crashes often cause catastrophic injuries and death to the victims involved. In many of these accidents, the cause of the crash is determined to be a malfunction in the railroad operation or failure of train operators to communicate.
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Train and Vehicle Crashes: Most vehicle occupants in a train and vehicle crash do not survive. For those who do survive, the injuries are usually devastating. According to national statistics from 2017, there were more than 2,000 train and vehicle crashes, causing the deaths of 274 victims. Data compiled from these types of crashes also show that three out of every four train and vehicle crashes occur within 25 miles of the vehicle driver’s home and half of all crashes take place within five miles of the driver’s home. And when it comes to the survival rate for vehicle drivers involved in train to vehicle crashes, data shows they are more than 20 times more likely to die when their vehicle is hit by a train compared to being hit by another vehicle. Many of these crashes are caused by train operator error or faulting railroad warning equipment.
Derailments: Derailments – when a train runs off track rails – result in some of the deadliest accidents. They can happen if the train hits an object on the track, because of train operator error, or because of poorly maintained tracks. Not only can derailments cause injuries and death to passengers and railroad employees, but they can also cause injuries to people who are in the area of a derailment if the train is transporting hazardous materials.
Common Train Accident Injuries
Although a train-related accident can result in many different types of injuries, the following are the most frequent that our train accident clients come to us with:
- Spinal cord injuries
- Fractured bones
- Torn tendons
Let a North Carolina Railroad Accident Attorney Help You
The law imposes certain legal obligations on common carriers such as railroads in order to protect passengers and the public in general. When there is a failure to use reasonable care on the part of the railroad where the accident occurred, such as conductor or engineer negligence, a train defect, engine mechanical failure, or railroad track defects, choosing legal counsel experienced in North Carolina personal injury litigation is a must.
While the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51 et seq. offers protection to all railroad employees who are injured in the course of their employment due to some negligence on the part of the railroad or its employees, engineers and trainmen who suffer injuries on locomotives that are in use (i.e. not being repaired or serviced) are given a heightened level of protection by the Locomotive Inspection Act 49 C.F.R. § 2071. We are often asked the difference between a claim for an injury under the FELA versus the Locomotive Inspection Act (LIA). There are several significant differences between general FELA claims and LIA claims. The history and purpose of the Acts are important when you are attempting to understand the difference between the coverage and protection afforded by the various Acts. Congress passed the Safety Appliance Act in 1893. It became effective in 1900. Railroads had expanded quickly following the end of the Civil War. As rail traffic increased there was also an increase in injuries to railroad workers. Many of the injuries were associated with coupling operations. In response, Congress passed the Safety Appliance Act which required automatic couplers and airbrakes to reduce the times railroad employees had to go between cars in coupling operations. (The Safety Appliance Act is now found at 49 U.S.C. § 20701 et seq.) A later amendment to the Safety Appliance Act increased its scope to require secure grab irons and hand holds on the ends and sides of rail cars.
The FELA was enacted in 1908 to address dangers encountered by all railroad workers in the course of their jobs. An injured railroad employee has a claim under the FELA if their injury was caused in some part (no matter how small) by the negligence of the railroad or its employees. This means there must be some type of negligence on the part of the railroad established by the injured employee to recover damages under the Act.
The FELA is also a comparative negligence law. 45 U.S.C. § 53 (this means an injured employee’s recovery may be reduced in proportion to their own negligence.) (If a jury or court finds an injured employee was 50 percent responsible for their injuries, the verdict or award will be reduced by 50 percent, etc.)
A predecessor to the LIA, the Ash Pan Act was passed by Congress in 1908. That Act described how ash pans were to be maintained and attached to steam locomotives. In 1911 Congress passed the Boiler Inspection Act which was applicable to all steam locomotives. The Act expanded over the years to cover all parts of a locomotive. The Act is now referred to as the Locomotive Inspection Act and is found at 49 U.S.C. § 20701. The LIA requires (1) all parts and appurtenances of a locomotive be in proper condition and safe to operate without unnecessary danger of personal injury; (2) locomotives be inspected as required by federal regulations; (3) the locomotive and its parts and appurtenances can “withstand every test prescribed by the Secretary (of Transportation). The Code of Federal Regulations (tests prescribed by the Secretary of Transportation) describe minimum safety standards for all locomotives (except steam engines) at 49 C.F.R. § 229.1. The defense of contributory negligence is not available to a railroad in a claim under the LIA according to the law at 45 U.S.C. § 53.
Courts have interpreted these laws to mean if an employee is injured on a locomotive (other than during inspection, repair or servicing) due to a defective part, that employee is entitled to recover under the LIA. Courts have held the LIA to be liberally construed in light of its purpose to protect the employees (and others) by requiring use of safe equipment. Lilly v. Grand Trunk Western RR. Co., 317 US 481 (1943). The Act has been interpreted to cover defective parts and conditions on locomotives, including the presence of foreign substances on walkways. (See Lilly).
Courts have also held an action under the LIA is based upon a violation of the statute (i.e. a defective part or condition) and a railroad cannot escape liability under the LIA by showing it used reasonable care in maintaining the locomotive. O’Donnell v. Elgin, Jolit and Eastern Ry. Co., 338 US 384, 390 (1949). The language of these laws and the court rulings interpreting them have come to mean an employee injured due to a defective part or condition on a locomotive only needs to show the defective part or condition caused their injury while they were in the course of their employment (except inspecting, repairing or serving a locomotive). The employee who shows an injury due to such a defect does not have to establish negligence on the part of the railroad, nor will their recovery be reduced if their own negligence contributed to the injury.
In an FELA case, the employee must prove the negligence of the railroad caused, or at least contributed, to his or her injury. In a case under the LIA, the employee simply needs to prove a defective part or condition on a locomotive, not being inspected, repaired or serviced, caused or contributed to his or her injury. Contributory negligence (negligence on the part of the employee) may reduce an award under the FELA; however, contributory negligence should not affect an award under the LIA. The effect of these laws is to make a recovery for an employee injured in the course of his employment due to a defective part or condition on a railroad much easier to prove once such a condition or defect is established.
We are frequently asked by railroad employees who were injured during the use of a handbrake whether they’re covered by the FELA or if they have a case if an inspection of the brake after the injury showed it worked properly when inspected. The answers to these questions have been clearly responded to by the United States Supreme Court and well-established legal precedent.
- Injuries suffered by railroad employees operating handbrakes are covered by the FELA, 45 USC § 51, et. seq. and, if the car is “in use,” by the Safety Appliance Act, 49 USC § 20302(a)(1)(B). In this context “in use” is comparable to “in transit” (i.e. not set out for repairs or inspection). Minneapolis, St. Ry. Co. Minneapolis St. Paul Railway Companies v. Goneau, 269 US 406 (1926).
The differences between cases under the FELA versus the SAA are significant. If the car is not “in use” and the FELA is the governing law, an employee must show the railroad was negligent in some way in its maintenance, repair or inspection of the handbrake. The employee also needs show the railroad knew, or should have known, the brake was defective prior to the injury. Under the provisions of the FELA, an injured employee’s recovery may be reduced in proportion to any negligence a court or jury feels the injured employee engaged in leading to the injury (i.e., if a court feels the injured employee was 50 percent responsible for his or her injuries, the verdict will be reduced by 50 percent, and so on).
If the car is “in use” at the time of the injury, the injured employee only needs to show the brake failed to operate as intended (was “inefficient”) at the time of his injury. The landmark handbrake case is Myers v. Reading Co., 331 US 477 (1947). The Supreme Court points out in that opinion the proof to establish the railroad’s responsibility for an injury under the SAA is much simpler than under the FELA generally. The SAA “…simplifies the issue beyond that presented in the ordinary care under the Federal Employers Liability Act where the plaintiff must establish the negligence of his employer. Here it is not necessary to find negligence. A railroad subject to the Safety Appliance Act may be found liable if the jury reasonably can’t infer from the evidence merely that the handbrake which caused the injuries was on a car which the railroad was using on its line, in interstate commerce, and that the brake was not an “efficient” handbrake. Myers, 331 US at 482-83.
- A defective handbrake can be established by an injured employee’s testimony despite subsequent inspections revealing no defect.
The Myers court also discussed two recognized methods for establishing an inefficient (defective) handbrake. The first is proof of a specific defect revealed on inspection. The second is “…the testimony of the plaintiff that the brake was used in the normal and usual manner and failed to work efficiently…”. Myers at 483. According to Myers, if an employee attempts to operate a handbrake in the usual manner and is injured, his or her testimony of the failure of the brake to perform as intended is sufficient to establish a Safety Appliance Act violation for consideration by a jury or court.
There are also several common sense steps an injured employee should take if injured due to a defective handbrake. Get the number of the car so it can be identified and its repair history obtained at a later date if necessary. Report your injury to your co‑workers and the railroad as soon as practical. Get prompt and appropriate medical care. Somehow record or memorialize the steps taken leading up to and including efforts to operate the handbrake, the location of your hands and feet during the operation effort, the location of the handbrake on the car, the height and size of any brake platform, etc. Rely upon your own knowledge regarding the operation of the handbrake to determine whether a potential claim exists under the Safety Appliance Act. Inspection of the equipment after the injury is not the only way to establish a safety appliance violation according to the United States Supreme Court. If you are injured in the course of operating the handbrake take these steps to protect yourself.
The Federal Employers’ Liability Act (“FELA”), 45 USC § 51, et seq., is a humanitarian statute intended to protect railroad workers from unsafe conditions and practices associated with their occupations. Its purpose has been interpreted as to adjust and allocate the cost of work-related injuries, an inescapable expense of the railroad industry, between the worker and the railroad. Sinkler v. Missouri Pacific R.R, 356 U.S. 326 (1958). “The FELA was designed to put on the railroad industry some of the costs for legs, eyes, arms and lives which it consumed in its operations.” Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949). In Rogers v. Missouri Pacific R.R, 352 U.S. 500 at 507 (1957), the U. S. Supreme Court noted the Federal Employers’ Liability Act “was enacted because Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence … “.
The statute changed and modified the common law, and although the basis of liability is negligence, the FELA abolished the defenses of the fellow servant rule (45 U.S.C. § 51, and the doctrine of assumption of the risk. 45 U.S.C. § 54. The FELA also provides that contributory negligence does not bar recovery but merely diminishes the amount of damages recoverable by the injured employee. 45 U.S.C. 53. “What constitutes negligence and makes a railroad liable in damages under the FELA is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes, and is governed by the Federal Decisional Law.”: Urie v. Thompson, 339 U.S. 163 (1949). The basic inquiry in an FELA case is whether any negligence on the part of the railroad “played any part, even the slightest, in producing the injury or death for which damages are sought”. Rogers v. Missouri Pacific R.R., 352 U.S. at 506.
In 1893, Congress passed the first version of what is now called the Safety Appliance Act, followed in 1911 by the Boiler Inspection Act (also referred to as the “Locomotive Inspection Act”). The Boiler Inspection Act is now found at 49 U.S.C. § 20701, et seq., and the Safety Appliance Act at 49 U.S.C. § 20301, et seq. These acts standardized the safety requirements for many aspects of railroad operation. A plaintiff seeking damages under either the Safety Appliance Act or Locomotive Inspection Act need only prove a statutory violation and causation to establish liability on the part of the railroad. Kernan v. American Dredging Co., 335 U.S. 426, 432 (1958); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 434-35 (1949). The violation “is itself an actionable wrong, and no way dependent upon negligence and for the proximate results of which there is liability – a liability that cannot be escaped by proof of care or diligence”. O’Donnell v. Elgin, Joliet and Eastern Ry. Co., 338 U.S. 384, 390 (1949); see also Brady v. Terminal R.R. Assoc., 303 U.S. 10, 15 (1938).
The defenses of contributory and comparative negligence are not available in actions based on a violation of a safety statute such as the Safety Appliance Act or the Locomotive Inspection Act. 45 U.S.C. § 53. The fact there may have been more than one cause of an injury is immaterial as long as one of the causes is attributable to the Railroad’s negligence. Heater v. C & O, 493 F.2d 1243 (7th Cir. 1974). A railroad employee may likewise recover from his employer for any injury caused, in whole or in part, by any negligence of a fellow employee. Sinkler v. Missouri Pacific R.R., 356 U.S. 326 (1958).
While state law governs purely procedural matters in an FELA case, any matter of a substantive nature is controlled by federal law as developed in federal decisions. Norfolk and Western Rwy. Co. v. Liepelt, 444 U.S. 490 (1980). The sufficiency of the evidence is a substantive matter determined by federal precedent. Brady v. Southern Rwy. Co., 320 U.S. 476 (1943).
The right to a jury trial is “part and parcel” of the FELA. Bailey v. Cent. V. Rwy. Co., 319 U.S. 350, 354 (1943). The FELA’s liberal purposes must be kept in mind when deciding an issue and derogation of the FELA’s remedial purpose of providing workers with access to courts for redress of their injuries. Urie v. Thompson, 337 U.S. 163 (1949).
Yes, to give the briefest and clearest answer.
Any employee of a railroad corporation that engages in interstate commerce has coverage for work-related injuries and occupational illnesses under the law formally known as the Federal Employers Liability Act.
FELA was enacted in 1908 to protect railroad employees who were almost always excluded from the state-based workers’ compensation programs that were just then coming into being. While FELA procedures differ significantly from those used by workers’ comp, the intent is the same. Individuals who get hurt, killed or made sick while they were doing their jobs can seek compensation and damages for medical bills, disability, lost wages and, in the worst cases, wrongful deaths.
The first qualification for coverage under FELA is working for a company that is subject to the rules and regulations created to implement the law. So, again, yes, people who work for a railroad company but not on trains do have FELA rights.
And, of course, office workers face risks for workplace injuries and occupational illnesses. The Society for Human Resource Management, for instance, lists four of the most common physical dangers in office settings as
- Slips, trips and falls;
- Repetitive stress and strain, which are also known as ergonomic injuries;
- Fire and smoke; and
- Poor indoor air quality, ranging from particulates to fungal spores.
Railroad employees who work inside rail yard administration buildings and corporate headquarters can also be exposed to cancer-causing particulates, toxic fumes and infectious agents. The extensive use of asbestos insulation in buildings built before the 1980s and the almost constant idling of diesel-powered locomotives in freight and switching yards pose particular dangers to longtime and retired office staff.
Proving a FELA injury or illness claim is not always easy, though. Doing so requires showing that railroad, through its executives, managers or employees, acted negligently and failed to protect the injured or ill worker. Partnering with an experienced FELA attorney can help a current or retired railroad worker find, organize and present evidence of negligence. Documenting negligence makes a railroad strictly liable for settling a FELA claim or for paying a FELA award granted by a civil trial jury.
Why You Need an Experienced Railroad Derailment Lawyer When You Suffer Injuries or Lung Damage From a Train Wreck
No one can feel completely safe when a train goes off the tracks. “Train wreck” did not become shorthand for a disastrous situation for no reason.
As Virginia-based railroad injury lawyers for going on 40 years, we have seen firsthand some of the worst results from train derailments. We helped several victims of the Norfolk Southern chemical train crash in Graniteville, South Carolina (SC), that released a massive cloud of deadly chlorine gas. We also secured a $60 million award for a man who suffered permanent brain damage after a train literally flew off its tracks and crashed into the gas station service building in which our client was working.
- A Brief History of Railroad Injury Law in Virginia
- Dangers From Trains Transporting Chemicals, Oil Ever-Present
The people most likely to get injured or killed in train derailments are, of course, crew members, track workers and rail yard employees. When on-the-job accidents occur, railroad staff have undeniable rights to file claims for the payment of medical bills, lost wages, disability costs and, in the worst cases, funeral expenses and wrongful death settlements.
Railroad workers who get hurt or killed while on duty are covered by the Federal Employers Liability Act. Usually shortened to FELA, the law does much of what state workers’ compensation laws do for workers in other industries. The biggest difference is that when a railroad refuses to settle a work-related injury or death claim, the rail employee or the employee’s family must file a federal lawsuit. The case itself can be heard in a state court, but it is essential to hire an attorney who has national experience with handling FELA lawsuits.
A few reasons for this include the following:
- Federal safety laws control the actions of railroads and violating those laws automatically creates liability.
- Obtaining critical evidence and company records often requires filing requests under the federal Freedom of Information Act.
- How to identify the types and locations of records and evidence that might be destroyed or lost will not be obvious to someone working their first FELA case.
- Most railroad companies operate across state lines, giving them resources a law firm that only takes local cases will lack.
Perhaps most importantly, knowing the railroad company usually proves invaluable in successfully countering the arguments and obstructionism of the defense team in a FELA lawsuit. An attorney who has spent decades fighting for the rights of rail employees will have many connections inside a company who can confirm details about a derailment and corporate policies and procedures. An experienced FELA attorney will also be able to call upon a broad range of experts to conduct investigations and testify on his client’s behalf.
If you need information regarding your legal rights after any type of railroad accident involving injuries or deaths from a train derailment, crash or release of toxic chemicals, please contact our law firm for a free and confidential consultation.
More than 6,700 miles of railroad track exist in Virginia, and those tracks cross thousands of driveways, business lots and private roads. Nearly every one of those private railroad crossings lacks the flashing warning lights and automatic gates drivers, bike riders and pedestrians have grown to expect on public roads and highways. In fact, a majority of private railroad crossings are not even marked with stop signs or crossbucks — those black-and-white x-shaped signs that people can see long before they reach a set of tracks.
- Private Railroad Crossing Safety: Reasonable Warnings Required by State Law
- A Virginia Railroad Crossing Injury Lawyer’s Advice on Train-Car Crashes
Still, even as overall freight and passenger rail traffic has increased across the country, the number of collisions at road-level, or grade, crossings has fallen significantly over the past decade. Records kept by the Federal Railroad Administration indicate that 2,041 crashes involving trains going through grade crossings occurred during 2016. Those collisions caused 255 deaths and 843 injuries. A slight uptick in grade crossing crashes occurred in 2017, and deaths and injuries rose to, respectively, 274.
When a collision resulting in deaths or injuries happens at a grade crossing on a public road, the question of which party caused the crash is relatively straightforward. A Virginia personal injury lawyer or wrongful death attorney will ask whether the victim entered the crossing despite seeing warning lights and encountering a lowered gate, or whether the lights and gates worked properly.
Questions over fault at private railroad crossings become much more complicated. First, Virginia law assigns the owner of a grade crossing the legal duty to “take precautions to provide for the safe movement of traffic.” Meeting that duty requires doing things like putting up signs, cutting back vegetation to maintain lines of sight along the tracks, and maintaining the roadbed under the tracks so vehicles do not get stuck. If the crossing owner has failed to do these things, the crossing owner can be held liable for a crash.
Then, the issue of who owns the private crossing arises. Railroads must sign contracts with landowners when the company lays tracks through a home’s yard or a business’ lot. That agreement will assign obligations for maintaining the crossing to either the railroad or the landowner. A Virginia plaintiff’s attorney will need to ask for and review the contract to determine which party owed the duty to protect the victim of the train crash.
Last, the Virginia railroad crossing crash attorney must confront questions related to contributory negligence. Virginia is one of just four states that block insurance claims and personal injury or wrongful death lawsuits when the victim can be found even one percent responsible for causing a crash. A Virginia case that focused on this issue determined that drivers must expect that tracks exist and have reason to believe that a train may be coming in order for a court to find contributory negligence.