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Texas railroad accident attorney Michael Grossman explains how Texas and Federal law works for those injured by trains.

Trains are a vital part of our transportation infrastructure. Their ability to move massive amounts of goods and resources in a cost-effective manner helps all of us to enjoy the highest standard of living in human history. Unfortunately, that increase in everyone's prosperity comes at the price of almost 900 lives per year on average. Included in that total are those in vehicles that collide with trains, railroad workers, and pedestrians near the train tracks.

Prevailing public thought on railroad liability generally falls into one of two extreme camps, either railroads are always liable when someone is killed or injured by a train, or that railroads are never liable for injuries that result form people being hit by trains. The truth actually lies somewhere in between. The attorneys at Grossman Law Offices have helped many train accident victims recover damages for their injuries over the years. In this section we will provide an overview of how train accident law works.

Questions answered on this page:

  • How do train accident cases differ from car accident cases?
  • What are some common types of railroad accidents?
  • How Does FELA differ from the Workers' Compensation System?
  • What are different class of railroad companies? How does this affect your ability to recover compensation?
  • How can a train accident attorney help you maximize your claim against a railroad company?

What makes train accidents cases different from car accidents cases?

It's important to keep in mind that train cases are not "big car accident" cases. If we were to compare the complexity of the law regarding car accidents to the the intricacy of train accident law, such a comparison would be like comparing checkers and chess. The complexity of a train accident case is orders of magnitude beyond what a car accident case would be. This does not mean that such cases are not winnable, just that you have to make sure that your attorney has experience litigating cases that center on railroad law.

Proving the train was at fault requires, not only understanding how the law applies to the facts of a particular case, but also evidence that demonstrates that the railroad ignored that law, and that such irresponsible behavior was that actual cause of the accident. The following examples help to illustrate the complexities of train accident law, while showing how two similar fact patterns might lead to completely different results:

  • Train engineers have hours of service caps that limit the number of hours, engineers are legally allowed to work, in order to ensure that the trains' operators aren't too tired. Suppose the railroad ignores those caps and an exhausted engineer, too fatigued to safely operate a train, fails to see a car at a crossing. The engineer fails to blow the train's horn to warn the car on the tracks and crashes into a car. The victims may well have a claim against the railroad. These caps are not as straight-forward as other labor caps on working hours. For instance, the law may be broken if the railroad company makes a phone call to the engineer during their mandatory 10 hours of rest time.
  • In a similar example, a train's engineer has been on the job too long and hits a car that was improperly at a crossing. The train again fails to blow its horn, but it is determined that it is unlikely the car or its occupants could have gotten off the tracks, even with warning that the train was coming, because of a medical emergency that the driver suffered. In such a case it is unlikely that the railroad would be required the to compensate the victims.

What are common types of train accidents?

The main types of railroad accident cases fall into the following three categories:

  • Collisions between trains and automobiles
  • Accidents between trains and pedestrians
  • Incidents which injure or kill railroad employees

Trains and cars

Perhaps the most common railroad accidents involve trains hitting cars and trucks at railroad crossings. We've all been stuck at a crossing for what felt like forever as a train rolls by. In most instances, the law treats trains as a separate highway system with its own rules and regulations. One of the bedrocks of this system is that anyone who is not authorized by a railroad company to be on the railroad tracks is a trespasser. Generally, railroad operators owe very few duties to trespassers, but there are some common conditions at railroad crossings for which the railroad company can be held liable if they result in an injury:

  • Line of sight: Drivers are entitled to be able to see if a train is coming down the track in order to protect themselves. State and federal law actually mandates the number of feet drivers should be able to see left and right from a crossing. The point of these regulations is essentially to allow a driver to see an oncoming train before they are in danger. Railroads are required to provide us all with a view unobstructed by:
    • Foliage: Trees and bushes tend to grow near railways because there is no other nearby development. Railroads must proactively tend to any trees or bushes near crossings in order to maintain clear lines of site, as well as to keep foliage from obstructing warning systems, such as signs and lights.
    • Inclines: Train tracks have to be built above a floodplain, meaning, there are places where a track must be above where people and motorists operate. If the track is placed improperly close to an incline, then motorists will be able to only see up, not left and right, inhibiting their ability to spot an oncoming train.
  • Warning system failure: Railroads must employ several warnings before a train can cross a roadway in order to avoid colliding with a car. The most important are lights, honking the train's horn, and a preventative arm to block cars. These systems are not especially expensive or complex, but railroads are notorious for failing to keep them in working order.

Whenever a railroad fails to maintain safe crossings and people get hit by a train, it opens up the possibility for the injured motorist to hold the railroad accountable financially for any damages the motorist sustains.

Further Reading About Common Railroad Accident Scenarios:

Trains and Pedestrians

Train tracks are property of the railroad. They own what is called a "right of way," which is essentially a strip of land that can be used only for their purposes. No one is allowed on the tracks, just like no one without permission is allowed in your home. As harsh as it may sound, railroads owe very little protections to people walking on or near their tracks. The law classifies anyone on the track as a trespasser and rarely awards compensation to those hurt who weren't there with the railroad's permission.

One exception, to this general rule, is children. Trains are naturally fascinating to kids from the time they're barely more than infants, and when children are mobile enough to wander onto train tracks, railroads must perform a minimal amount of effort in keeping them away from danger if they know it's happening.

To clarify the extra duty that trains owe to keep children away from the tracks, our firm was involved in a case a few years ago involving children routinely playing near some neighborhood railroad tracks. The railroad knew the children played there and every day, when the train passed by, the engineer would blow the train's horn, much to the delight of the youngsters. Unfortunately, blowing the train horn day after day to amuse the kids, naturally attracted them to continue playing near the tracks.

This went on for awhile, until tragically, one day the children were playing too close to the tracks and a boy had his leg severed by the passing train. In this instance the railroad was held liable for the boy's injuries, because not only did they fail to make a minimal effort to keep children from playing on the tracks, the engineer's conduct actually encouraged the children's behavior.

It's important to remember that, as with any personal injury or wrongful death case, the law requires the bringer of the claim (known as the "plaintiff") to produce more credible information and evidence than the railroad. An inexperienced railroad accident lawyer will simply assume that the undeniable tragedy of a maimed or dead child will be enough to sway a jury. This is a recipe for failure.

Railroad Employees

While it goes without saying that railroad work is a dangerous way to make a living, with something as fragile as a person working in close proximity to vehicles that weigh hundreds of tons, it does not mean that railroad work has to be deadly. However, long hours and sometimes poor working conditions can combine with the inherent risks of working around large machinery to injure or kill railroad employees.

In 1908, Congress responded to the appalling injury and death rates among railroad workers by passing the Federal Employers Liability Act, or "FELA." Many employees have heard of the workers' comp system and think FELA is essentially the same thing. The best way to understand the two systems is by comparing how they differ:

  • Guaranteed Benefits vs. Filing a Lawsuit: When a worker is injured on the job and his boss carries workers comp, the health and lost wages benefits are essentially assured. He simply has to file a claim by filing out some paperwork and then he's sent to the company doctor. This is known as a "no fault" system, since compensation for injuries is not tied to who is to blame for the worker's accident. FELA doesn't guarantee benefits. Instead, you have to file a lawsuit in court and go through the legal process to prove that the railroad was responsible for your injuries. One of the advantages of FELA versus other systems is that workers only have to demonstrate that the railroad's negligence contributed to their negligence. Although the employee's own negligence, even if it is mostly to blame for an accident, may reduce their ultimate compensation, it cannot prevent recovering damages.
  • Available Money to Compensate You: Workers compensation follows a predetermined formula. Whatever initial medical bills you incur will generally be paid. Workers get a minimal amount for lost wages and a small amount for any potential future medical expenses. Anyone who has ever dealt with the system will tell you that in serious workplace injuries and deaths, workers comp doesn't come close to fully compensating victims. In contrast, under FELA, a railroad worker can potentially be fully compensated for her damages.

The basic differences are that workers comp doesn't require a worker to prove anything, but that worker will not be awarded anything close to the actual amount of the damages they have sustained. FELA requires a worker to prove their case in court, but offers a means to be fully compensated for medical care, lost wages, and diminished earning capacity.

Other Resources for Injured Railroad Workers:

Gathering evidence and preserving the value of your case.

When an employee is hurt, the first thing he or she needs to do is get medical treatment as soon as possible. In fact, FELA requires the railroad company to transport employees to the nearest hospital. Getting medical treatment may sound like the obvious thing to do, but too many workers further injure themselves by trying to "tough it out."

Second, the worker needs to avoid people from the railroad's insurance company. Insurance adjusters get paid good money to get signatures on releases or "statements" that will later hurt the worker's case. If the railroad threatens to retaliate for not complying with their desire for you to speak with the insurance adjuster, notify an experienced railroad accident attorney. FELA offers railroad workers strong anti-harassment and whistle-blower protections. Third, at the very earliest, the worker or a family member needs to contact an experienced FELA attorney who will work quickly to secure the evidence that in most circumstances will quickly disappear.

Further, if and when a worker talks to anyone other than their spouse or their lawyer, they must be aware that whatever they say can come back to bite them. Good cases are often lost by "loose talk" or idle chatter where the injured party says something they shouldn't. Just some good rules of thumb:

  • Don't say you're "not hurt that badly" just to appear tough
  • Don't make any statements about how much money you're going to get out of a potential lawsuit
  • Don't presume to know how the accident happened. You may have contributed to it, but don't be so sure. Just wait for the legal process to play out

Every case is different, but each requires a thorough investigation of the facts. The accident scene will need to be viewed up close not just by attorneys, but also hired experts with railroad management experience who can explain to a jury how railroads are supposed to perform. Witnesses will be interviewed, federal and state accident reports scoured for leads to more evidence, and important internal documents will have to be retrieved before any adequate understanding of the accident can be formed.

The investigation will shape how the legal process works. Usually, both the victim's lawyers and the railroad's lawyers can point to something at the accident scene to show that their respective party was not the cause of the accident. This will make necessary a more protracted fight with more interviews, more documents being exchanged, and even the involvement of the courts.

Either after an investigation or after getting the courts involved, both sides will sometimes be able to see that the train's engineer and/or railroad was plainly at fault, and the case will shift to the "damages" analysis. Damages encompass all your losses, including medical bills, lost wages, and any pain and suffering you endured. Calculating and proving these losses involves more than just excellent litigating---it requires experts like economists, medical consultants, and even mental health professionals.

This is one area where an attorney who is familiar with FELA is even more important. In many cases, when calculating economic damages, expert economists will look to the previous year, 2 years, or 5 years of income and calculate lost earnings based upon what the worker would be projected to earn in the future. While this works for darn near every job out there, railroad work, with its emphasis on seniority means that using past income to calculate damages is irrelevant. If you're attorney is not familiar with FELA law and hires an economist who is equally unfamiliar, the result could be settlement demand that does not apply to the railroad industry and significantly undervalues your future earnings.

What makes FELA cases particularly contentious is that unlike the modified comparative fault system that Texas employs in civil cases, where you need to show the other side was at least 51% to blame for your injuries before you can recover, the lower burden in a FELA case means that if the railroad is only 25% to blame, an injured worker can still recover a portion of their medical expenses and lost wages. Of course, many attorneys, who don't have experience with railroad law, might turn away viable injury cases because they are simply unaware of the lower burden of proof under FELA.

The lower burden of proof also means that FELA litigation tends to be a fight for every single percent of responsibility, making for more contentious litigation. That is something both an injured worker and their attorney need to expect going into a case.

Obstacles to Recovering Compensation:

Different Railroad Classifications

As we've already discussed, railroad cases are governed by very specific laws that most attorneys are unfamiliar with. For example, all railroads are not the same. Railroads are divided into three classifications:

  • Class I A railroad that has annual revenues of $398.7 million or more. An example of a Class I railroad would be Union Pacific Railroad.
  • Class II A railroad with annual revenues of at least $31.9 millions, but less than $398.7 million. Typically regional railroads are considered Class II railroads.
  • Class III These are railroads that have revenues of less than $20 million a year. Typically Class III railroads are local short-line railroads.

This classifications matter because the size of the railroad can potentially impact the availability of what you are able to recover. Smaller railroads often do not have the revenues and profit margins to cover serious losses, and they typically don't carry as much insurance as their larger counterparts. By contrast, larger carriers have enormous revenues and profits, and they protect those with large insurance policies.

The bottom line with Class I and Class II railroads, in particular, is that they have a lot of money and assets to protect, so they don't hire cheap lawyers. They only hire aggressive, experienced defense lawyers who will fight your claim tooth-and-nail. This is why you need a law firm on your side with the experience that will make your case so strong in the eyes of the railroad company that they will come to their senses and offer a reasonable settlement.

Why you need an experienced railroad accident attorney for your case.

A lot of inexperienced attorneys will likely make the mistake that they can simply file a lawsuit and bluff their way to a nice settlement. An experienced railroad lawyer will not only aggressively fight your claim from a legal standpoint, but will also secure and hire the best experts in the business. Experts are usually retired railroad safety directors who can explain to a jury what the practices and procedures should be, and how the defendant violated them. Good expert testimony is vital for your case for the following reasons:

  1. A railroad lawyer's job is to understand the legal system and put on testimony, not explain every last detail about how railroads are supposed to work.
  2. Juries place considerably more weight on the statements of someone who worked in the railroad industry for many years and knows how the laws work in practice.
  3. The defendant will have a highly-paid expert on their side whose assumptions and conclusions must be challenged.

If finding the right expert witnesses is a challenge, preparing the witness to testify at trial is an art. Experts often want to "play lawyer" and accuse the defendant of all manner of bad behavior. An experienced railroad lawyer will have the witness so prepared that he or she focuses only on the issues that are backed by strong evidence and can withstand cross examination.

If you've been injured in a railroad accident it should be clear that you need an experienced railroad accident attorney on your side. Over the past 25 years, Grossman Law Offices has successfully pursued many claims against railroad companies for injuries of all types. If you have questions about your case, call us for a free consultation at (855) 326-0000. We answer the phone 24/7 and are ready to help you in any way we can.

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