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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.
A railroad crossing in Halifax PA where new mother Trisha Hoffman died on Sept. 4 has been termed ‘seriously deficient’ by two railway experts interviewed in early September by PennLive.com.
Pennsylvania state law does not require that drivers stop at all railroad crossings. They only must stop for flashing lights, gates, or if they know a train is oncoming.
The problem with that railroad crossing at Susqeuhanna Trail Road and Route 147 in Halifax is that it is very difficult for drivers to see that a train is oncoming before it is almost on top of you. That is the opinion of Gus Ubaldi, an airport and railroad engineering expert with Robson Forensic in Lancaster PA.
That railroad crossing also has no stop or yield sign, even though it is recommended by nationally accepted standards for railroad crossings.
Norfolk Southern Railroad uses that track and crossing, but it told PennLive.com that the crossing is public, so that the Public Utility Commission of PA should determine signage and other requirements for it. However, it was determined that the crossing is actually private according to the Federal Rail Administration, so Norfolk Southern would be responsible for safety concerns.
According to Ubaldi, a driver on Susquenhanna Trail Road has to see a train 732 ft. down the railroad track from 70 feet before the car reaches the crossing. But at this crossing where the woman perished, the driver approaching the crossing cannot see anything other than trees and brush. When the driver is able to see a train approaching, the car would already be over the tracks.
Ubaldi stated that in his expert opinion, the deceased driver was not at fault
Our railroad crossing accident attorneys truly regret the loss of in this tragic railroad crossing accident. Railroad accidents obviously can lead to serious personal injury and death if crossings are unsafely maintained. From the coverage of this Pennsylvania railroad crossing accident, it would appear that Norfolk Southern may not have properly maintained the crossing, leading to a railroad crossing death.
Railroad crossings must have proper sight lines for drivers, with bushes, brush and trees properly cut away from the tracks. If the railroad crossing was improperly maintained, the railroad could potentially be held liable in a wrongful death lawsuit. Our attorneys have worked on million dollar railroad crossing accident settlements before, and we hope this young woman’s family considers all of their legal options carefully.
A recent case in West Virginia is a good illustration of how many different companies can be sued for exposing a former worker to asbestos, which can lead to mesothelioma in some cases.
The lawsuit was filed by Lois June Wells from Middlebourne WV. her late husband Robert Wayne Wells was employed by Weirton Steel in Weirton and also for Miles/Mobay in nearby New Martinsville. One might think that only those two companies would be named in a wrongful death lawsuit but her mesothelioma lawsuit named 103 different companies that were allegedly responsible for his asbestos cancer, which led to his death in July 2015.
The companies named in the suit have been accused of negligence for many reasons. The suit states that the companies knew or should have known of dangers posed by their products and that they did not provide warnings or supply safety equipment. Also, the suit alleges that equipment and supplies were not labeled and warnings were not provided.
Mesothelioma is a terrible form of lung and organ lining cancer that develops many years after the person is exposed to asbestos. Our mesothelioma law firm often represents railroad workers who developed asbestos cancer related to their work on railroads.
It could prove difficult in the West Virginia case for the woman’s legal group to prove more than 100 companies are responsible for her husband’s death, but we will watch that case with interest to see how it unfolds.
Large corporations are notorious for trying to deny that their products or conduct led to asbestos cancer in any of their workers. Many of the railroad companies we have sued tried to downplay for years the risks associated with asbestos exposure. This is not a surprise because companies do not want to spend money to make their workplaces safer.
However, our FELA law firm has been able to show in our mesothelioma lawsuits that the company(ies) usually knew years ago that asbestos exposure can lead to serious health consequences. Once we are able to establish that fact, as well as the fact that the company had asbestos-containing products to which the decedent was exposed, we have won very large personal injury asbestos settlements for our clients.
Leaders of railroad unions say there has been a perfect storm of Amtrak corporate changes that is mostly to blame for two workers dying on railroad tracks near Philadelphia earlier this month.
Union officials wrote a letter to Amtrak President Joe Boardman last week and said that employee training is insufficient, and they demanded major changes in the policy on ‘close call’ reporting of dangerous incidents.
They maintain that routinely hazardous conditions exist on the Northeast Corridor that Amtrak serves daily. Amtrak stated in response that it always tries to improve safety measures at the railroad, and that management and unions must work together to make this happen.
It was on April 2 that an Amtrak train slammed into a backhoe south of Philadelphia at high speed, killing two workers. The accident is being investigated by the National Transportation Safety Board.
Our train accident attorneys in Virginia have seen far too many cases where railroads put profits ahead of employee and passenger safety. Many train accidents occur that probably could have been avoided if the railroad had better adhered to safety regulations.
It is particularly alarming when Amtrak, which is managed and run by the US government, is itself possibly not following safety regulations. Last week the Federal Railroad Administration ordered a complete safety review of Amtrak’s work crew rules and regulations.
Grieving families in a case where a person or company is guilty of neglect should file a wrongful death lawsuit to ensure that the family’s financial needs will be taken care of in the future.
The Federal Railroad Administration has directed Amtrak this week to conduct an immediate safety review, due to violations that were revealed in the fatal crash and derailment in Pennsylvania on Sunday.
The FRA told Amtrak this week to do a safety stand down, which is a review of all of its work safety protocols with track workers and train dispatchers.
In the crash this week, an Amtrak train slammed into a maintenance vehicle on the tracks in Chester PA, which killed two workers.
The Wall Street Journal reported this week that a very simple safety device could have prevented the deadly disaster. It is a removable circuit that is made to ‘shunt’ tracks and trigger a red light stop signal. It was not in place, even though Amtrak rules state that it should have been.
Federal investigators are focusing on miscommunication on April 3, as a shift of track workers and supervisors took over for the previous crew. The train that slammed into the backhoe was on an active track that had been ‘fouled’ earlier, meaning that it had been removed from use temporarily because of a chance that workers on the next track could be endangered as they did their work. Investigators are working to determine how the train was allowed to continue through that stretch of track.
The investigation is ongoing, but they have uncovered several violations of safety rules that are troubling enough for the FRA to step in and demand a safety review.
Our train crash attorneys in Virginia truly regret the loss of life in this preventable train crash and derailment. It is sad that it appears that basic safety protocols were not followed by Amtrak that may have led to this deadly collision. How ironic it is that a railroad managed by the US government does not itself apparently follow its own safety rules issued by the FRA.
Our hope is that the cause of the crash is quickly determined, and that the families of the deceased pursue a wrongful death lawsuit against the responsible parties. When handled by experienced train accident counsel, a train crash and derailment suit can result in multi-million dollar settlements.
Federal agencies have told Amtrak and other railroads several times over the last few years to use essential back up safety systems for workers on railroad tracks to prevent deadly accidents, as the crash and derailment that just happened in Chester PA this week.
Sources with information about the Amtrak crash investigation that killed two workers have said that a communication lapse during a shift change may have led to the workers being on the tracks. Meanwhile, safety precautions that are intended to route trains away from those workers were cancelled.
This exact accident scenario has been a regular problem on US railroads, according to a 2014 Federal Railroad Administration report. That report stated that FRA is alarmed at the repeated occurrences of railroad workers being hit by or nearly hit by trains that seem to be due to miscommunications.
FRA stated in the advisory that back up safety systems were needed until positive train control was installed on all trains. While Amtrak has PTC on most trains in the NE corridor of the US, experts still say the system has not eliminated the need for back up safety protocols.
According to NTSB investigators, the Amtrak train slammed into a backhoe on the tracks in Chester PA at over 100 MPH and did not even slow down until five seconds before the crash. The brakes on the train were applied at the last seconds before impact.
The FRA report from 2014 recommended several backup systems where there could be the possibility of a communications break down. One of the devices is worn by workers that would alert them that a train is approaching, and would also warn train engineers of people on the tracks. Another system would be used for track maintenance vehicles.
Our railroad injury lawyers in North Carolina and Virginia are angry that this preventable accident that led to two deaths ever happened. It is the obligation of the railroad to use vital safety procedures and equipment to ensure the safety of workers and train passengers. We hope that the families of the deceased and injured file personal injury lawsuits against the responsible parties because effective counsel could likely win very large settlements or verdicts in this tragic case.
Dangerous railroad crossings are all too common in Iron County, Missouri, according to officials here. In December 2015, an Amtrak train slammed into a truck at a railroad crossing in Middlebrook MO and killed a local man.
In that case, it appeared that the man may not have seen the oncoming train and he drove over the tracks into its path. That particular crossing has only a yield and railroad sign but no warning devices.
Officials say that that fixing that particular crossing in Iron County is one of their top priorities. They say that they intend to install more flashing lights and gates at some of the more dangerous crossings in the county. They also intend to add lights and gates at another crossing in Annapolis MO that is especially hazardous for tractor trailers. Trucks tend to get stuck on those tracks and that could lead to another deadly incident.
Our Virginia railroad crossing accident attorneys have seen far too many injuries and deaths in the past few years in these cases. In our experience, there is a tendency for the local police to just take the word of the railroad company’s investigator and blame the car or truck driver for the collision. However, there are many cases in our experience as railroad accident lawyers in Virginia where the railroad was negligent.
For example, there are often maintenance issues at particular railroad crossings. In particular, we have seen many railroad crossing accidents where there was too much growth of vegetation around the tracks and this obscured the vision of the driver.
It is the responsibility of the railroad to ensure that the railroad crossing is properly maintained, which includes vegetation being cut back that can reduce sight lines. Also, the railroad must ensure that the safety gates and lights are working properly.
In railroad crossing cases where the railroad was negligent, settlements of hundreds of thousands or millions of dollars are possible. So, it is always worthwhile to speak to an experienced railroad accident lawyer if you have been involved in a railroad crossing accident.
Five cars on an Amtrak train in Cimarron, Kansas derailed early yesterday morning, sending 29 people to the hospital with non-life threatening injuries.
According to Amtrak, the train was traveling from Los Angeles to Chicago when it derailed at approximately midnight on Feb. 12.
According to the Kansas Highway Patrol, five cars derailed and were on their side.
Although the cause of the accident is not clear at this point, one of the passengers told the NTSB that she felt the train shaking just before some of the cars derailed.
The NTSB has sent a team to the area to investigate the derailment. We expect that more information will be released about this derailment in the coming days.
Our train accident personal injury attorneys have worked on many passenger injury cases in the past, and we hope that all injured Amtrak passengers in this derailment recover quickly.
One of our attorneys, Richard Shapiro, was the author of 72 American Jurisprudence Trial Treatise, which is found in most US law libraries. It has a great deal to say about railroad and employee safety, which also is relevant in derailment cases such as this one.
According to the treatise on page 38: ‘Track safety is closely related to employee safety. FRA rules establish track safety standards. Track safety standards deal with such issues as operating speed limits, drainage under and adjacent to the roadbed, vegetation posing a fire hazard or visual obstruction, ballast and crosstie requirements, track geometry, rail defects, switches, frogs, and regularly scheduled inspections as frequently as twice a week.’
We are sure that the NTSB will be taking a very close look at the condition of the railroad track in the area of the derailment.
Our train derailment attorneys in Virginia have seen major railroads outsource track maintenance in the past, which can lead to safety problems. For example, CSX has tried to save money by leasing less used railroad tracks to smaller, short line railroads. This means that CSX does not have to maintain the track anymore. This means that CSX can then blame the small railroad for any mishaps that occur.
In cases where the railroad was negligent, we have had success in securing sizable settlements.
One person died in Jacksonville FL when an Amtrak train slammed into an SUV that was straddling the tracks last week, according to the Florida Highway Patrol.
The police stated that the train hit the Chevrolet Tahoe at approximately 7:20 PM on Jan. 14. The driver of the SUV died after he was taken to a local hospital. According to witnesses, the driver apparently stopped on the tracks due to traffic.
No passengers or anyone else was injured in the crash. Police continue to investigate the accident.
Our research and experience as railroad accident attorneys in Virginia and North Carolina tells us that 31% of railway fatalities occur at railroad crossings.
Despite what some people think, most train crossing crashes do not occur because the driver was trying to cross the tracks before the train got there. In fact, many railroad crossings are ‘passive’, meaning that they do not have gates or flashing lights. At many of those crossings, the driver is supposed to watch and listen for train. However, many of these railroad crossings have poor visibility. That was the case in one of our train crossing crash cases, where a Norfolk Southern train appeared suddenly and hit our client’s car, which caused serious injuries to his two children.
A study was done of train crossing crashes, and sight obstruction was found to be a problem in 689 crashes, which led to 87 deaths.
Active railroad crossings with flashing lights and gates also can be made to be safer. One problem with them is the warning time may be too long, which makes drivers impatient and they may drive around the gates. Sometimes the gates and flashing lights do not work properly, which opens the possibility of a personal injury or wrongful death lawsuit.