Are Railroads Liable for Hitting Cars or Pedestrians on Their Tracks?

Michael GrossmanSeptember 10, 2015 5 minutes

Many people assume that pedestrians and the drivers of cars are always at fault whenever they are struck by a train. This is built on the assumption that the pedestrian or car unlawfully entered the train's right of way and the train couldn't possibly stop in time, so the railroad is therefore innocent while the injured person is in the wrong.

Usually, that is fairly accurate. The statistics show that most train accidents are not the fault of the railroad. However, that doesn't change the fact that many accidents are in fact the fault of the railroad. In this article, we're going to talk about scenarios wherein railroads are liable for train accidents, and when they're not.

Duties the railroad owes to the public.

Anyone who thinks that railroads can do whatever they want on their tracks is simply wrong. The law imposes burdens on train operators, including the duty to:

  • keep a proper lookout for obstructions on the track
  • take reasonable steps to avoid striking a person or object on the tracks
  • maintain good and safe rail crossings, including required signage such as the "crossbuck" sign
  • ensure that active and passive safety measures at rail crossings take into account road elevation changes, curves, overgrown vegetation, or other abnormalities which can limit the line of sight for drivers and pedestrians who approach a rail crossing
  • employ only amply qualified conductors and train operators
  • ensure that train operators are not fatigued and that they comply with hours-of-service regulations
  • ensure that train operators, switch operators, etc. are sober
  • maintain all rolling stock (AKA trains, locomotives, railcars, etc.) so that they're in proper, working order
  • operators must travel at a safe speed for the conditions (meaning that it's more complicated than simply following the speed limit as posted; weather must also be considered)
  • obey posted signage and follow stop lights (yes, trains have stoplights, too)

If any of the above duties are breached by the railroad or its employees and an accident results, that would reflect a situation where the railroad is at least partially at fault. However, sometimes they are exclusively at fault for failing to maintain the above duties or others. The point we're making is that there are many safety rules that railroads must follow, so the commonly-held belief of "the train is in the right if someone or something wanders on to the tracks" is flawed. In fact, there are many things that train operators and their coworkers can do to cause accidents that are entirely their fault.


Imagine that a freight train is roaring down the tracks, heading toward a private rail crossing. Private crossings don't typically have bells, alarms, or crossing arms to warn motorists and pedestrians about an approaching train. Instead, private crossings are more like an intersection in your neighborhood. There's a sign warning motorists, and that's about it.

Well, as the train approaches the crossing, so does a car. The driver of the car pulls up to the tracks and looks both ways. The coast appears to be clear, so they begin to cross the tracks. However, their line of sight was blocked by a curvature in the tracks, meaning that they could crane their neck and look in both directions, but at some point they simply couldn't see far enough down the tracks. As the driver crosses, lo and behold, the train is upon them, resulting in a fatal accident.

Under those circumstances, the railroad would likely be found liable by a jury. The jury's reasoning would be along the lines of, "If you have a crossing where you require drivers to look before crossing, they'd darn well better be able to see down the tracks."

Another example would be if a child wandered onto the tracks but the conductor of a light-rail commuter train was distracted by their cell phone rather than watching the tracks ahead of them.

Sure, the child should never be on the tracks, but, there they are, and it's the train operator's duty to avoid a collision. If the train operator fails to avoid the collision and the child is hurt, the railroad will bear liability for the accident. A light-rail train can usually be brought to a stop in short order, so the driver's distraction would be seen as a major cause of the accident.

Just because train conductors and railroad employees can be at-fault, that doesn't mean they're automatically liable. Ever.

One thing that most prospective clients say at some point during their consultation is some version of, "Well, the railroad is clearly at fault." There is no such thing as clear fault. Any case, no matter who the defendant is, is capable of being defended. Railroads are no exception. In fact, they have resources that most companies only wish they had, so if anyone has an incentive to fight victims or otherwise try to downplay their fault, it's railroads.

Literally, the only way to compel a railroad company to compensate their victims is to gather evidence to prove their fault, present it in such a way that they are concerned at the prospect of a jury ever hearing said information, and then use that as leverage to negotiate a settlement. Failing that, you take them to court. End of story. There are no funds or trusts wherein railroad companies deposit large sums of money to be paid to injured persons just because an accident occurred. All cases against railroads for injuries or fatalities are fault-based cases, meaning you have to formally prove their fault.

Children on the tracks: special rules apply.

There are several special situations wherein a railroad must be extra cautious and can face financial liability of they don't "go out of their way" to prevent injury. One is wherein children are concerned. Children are fascinated by trains, dangerously so, and there is only so much that railroads can do about this under most circumstances. However, when a rail company knows about a particularly problematic area wherein kids often play on the tracks, at some point the law shifts the burden to the railroad, requiring them to take proactive steps to keep the children off of the tracks.

For instance, we had a case recently where a railway switching station sat between a neighborhood and a school. Each day, dozens of children would cut through the neighborhood and cross the tracks to get to school rather than take the long way around on the surface streets. The railroad not only knew about this for years, but the train conductors would often wave to the children and chat with them as they made their way through. That is obviously not a type of behavior that should be encouraged. Instead, the railroad should have contacted the authorities each and every time that a child made their way onto the tracks, and the railroad personnel should have shooed the children away, not made friends with them.

Nevertheless, they neglected to do so. Naturally, an incident was bound to occur, and when it finally did, a young boy lost a leg. The really frustrating part with that case was that the whole thing could have been avoided had the railroad just erected a three-foot wide section of fence.

You see, the real estate developer constructed a fence that spanned the backside of the neighborhood, effectively blocking access to the tracks. However, the city had an easement on a small section of sidewalk leading to the tracks. This easement allowed city workers to access a piece of equipment that they needed to take periodic measurements from.

So, the real estate developer couldn't block this path, and the fence that blocked off 98% of the tracks, had an opening in it and a sidewalk leading to that opening. The thing is, though, the city's easement ended at the end of the sidewalk. Then began the railroad's property. So all the railroad would have needed to do was erect it's own small section of fence to link the sections of fence built by the neighborhood's developer, and the children would not be able to access the tracks.

Now, you may be wondering, why didn't the city or the real estate developer erect that piece of fence? They couldn't. They would be intruding upon the railroad's property to do so. So it was literally the railroad's property that the children used to access the rail yard on a daily basis, and it was therefore the railroad's responsibility to keep that from happening.

If this had been a case of adults doing the same thing, that would have been viewed by the law as trespassing, and it's doubtful that the railroad could be held responsible for any harm that was visited upon such an adult trespasser. But the law views children in a different light.