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| Burns, Cunningham & Mackey, P.C.

Have you ever wondered why some railroad crossing have flashing lights and gates, why some only have cross-buck warnings and some do not have anything (hopefully there are none of these)? Who decides what to put at these crossings? One would think it would be the railroad whose trains are traveling on the track. Certainly, they have the most interest in keeping vehicles off their tracks when trains are coming. However, railroads use federal law, in some instances, to protect them from liability if they strike a car or truck. Railroads are the ones who know or should know which crossings are dangerous and which need flashing lights and gates.

We represent a passenger in a truck which was struck by a train. Our client suffered closed head injuries and does not remember the wreck. The driver testified that another train was stationary on a parallel track and blocked his view. He stopped at the cross-buck warning and then tried to look around the parked train. By the time he saw the train coning it was too late. CRASH! What if there had been flashing lights and gates? The truck never would have gotten on the track. No truck- no wreck- no unnecessarily injured young man. Flashing lights and gates are the best protection to keep vehicles off tracks when trains which cannot stop are coming to an intersection. Installing these safety devices cost money and money spent cuts into the railroad’s profits.

There is a rule of law that if the federal government provided funds for warnings at these intersections, those who were not warned cannot claim there should have been flashing lights and gates- i.e those type claims are preempted by federal law. Railroad companies have been very successful with this defense in Alabama. Affidavits have been submitted from the state department of transportation that federal funds were used at all intersections in the state.

Instead of accepting the affidavits in our case, our co-counsel, Bob Pottroff, took the depositions of finance and safety crossing personnel at the department of transportation. After all the records in that department involving federal money for warnings were reviewed by them, the testimony was there nohting to indicate that federal funds were actually used at the crossing where this wreck occurred. The crossing where there were no lights or gates. The railroad has to prove that the federal money was used at the intersection in question. They were unable to do it. General assertions are not sufficient in a court of law. The trial judge denied their summary motion to dismiss the case.

Shouldn’t the railroads use the best warning devices to protect the public? And if they do not use them now an Alabama jury can decide whether the failure to use them caused the wreck. Our client was not even driving. The driver says he could not see. Certainly, railroads can see that the best warnings should be used to keep the driving public off the tracks when a train is coming.


  1. Gravatar for Mike

    What about taking responsibility for your own actions? How the hell you get hit by a train is beyond me. If you are stupid and careless enough not to take the 5 seconds to look both ways, well who's fault is that? If anything the Railroad needs to sue you for damages. It's your level of stupidity that is bringing this country down. You can't fix stupid, and this article is proof positive. Disgusting.

  2. Pete Mackey

    Mike - are you suggesting that warning devices are unnecessary and that the railroad is never at fault in a crossing collision?

  3. Gravatar for Gary

    Do all highway intersections have traffic lights? Are there highway intersections with obstructed sight lines? What does your driver do when operating his vehicle through those? Use extra care around an especially dangerous situation?

    This was a TRAIN. Big and noisy. If your driver was unable to safely operate his car over this crossing, he should have found another route.

    It likely the railroad has been in this location for at least 100 years. Why have others been able to operate their cars at this location and your "victim" wasn't?

    Sorry, all this is a lawyer looking for a payoff, which he will share with the "victim". If you are so concerned about safety, why not donate your thirty five percent to installing the protection you claim this location needs?

    Yeah, I didn't think so either...

  4. Gravatar for Jason Aaron Davidson
    Jason Aaron Davidson

    If an individual cannot see to cross the tracks safely, it is their responsibility to find a way to do so safely. This is especially true at crossings that have only crossbucks. Electrical failures do happen, so even at "protected" crossings, the motorist is required to use all of his senses to ensure that he can cross safely. Why do you think that haz-mat transporting vehicles are required to stop at ALL crossings?

    Billy's statement in the article, "The truck never would have gotten on the track" is pure speculation. Many individuals have driven around the gates while a train is coming from the opposite direction of a train that has just passed. This gives the illusion that the gates have simply malfunctioned in the down position. You know the result. If you don't, check April 1 the news for Batavia, IA. A mother killed two of her three children because she though the danger had passed and went around the gates. Just because a crossing has lights and gates does not automatically prevent accidents. It all goes back to the driver's responsibility to ensure safe passage across the tracks. It's the same responsibility I have when I leave my house and travel across a four-lane highway.

    I do know of ONE instance three years ago where the lights and gates were accidentally shut off and a woman in MI was killed by an Amtrak train. The accident was the fault of one employee who also tried to save the girl. She could still possibly be alive today, though, if she had slowed down and looked both ways before crossing the tracks. I do this no matter how a crossing is protected due to the fact that I understand what a train can do to a vehicle of any size.

    I agree with Gary. Commentator Pete Mackey, author Billy Cunningham, and partner Pete Burns: if you're serious about crossing safety, put your money where your mouths are. Contribute to Operation Lifesaver and volunteer your time to helping people realize that it's THEIR responsibility to cross tracks safely.

  5. Gravatar for William M. Cunningham, Jr.
    William M. Cunningham, Jr.

    Thanks for all the responses. I wonder sometimes if the post was actually read. In this case, the injured person we represent was a passenger- not the driver. The driver is also sued. Our client had no control over the vehicle. There was another train stopped on a parallel track blocking the view of the oncoming train. Lights and gates would have prevented the vehicle from ever being on the track - absent of course, some intentional act of going around the gate- which I agree is irresponsible. Now for some facts that were not in my original post. There are multiple studies that train whistles are not heard by drivers of cars when their windows are closed. The driver tried to see around the stopped train and by the time he was able to see the oncoming train his truck was partially on the track- so it is either go forward or try to back up. He had to choose. The train struck the rear of his truck- he almost made it. Our client has brain injuries- a 25 year old in the prime of his life now is hardly able to carry on a coherent conversation. He'll never work. He did nothing wrong. Medicare is paying his medicals. You are paying his medicals. If we settle or win the case, we will lessen your burden. If we lose the case, he'll remain on Medicare and we all will continue to pay. If we lose, we will be out several tens of thousands of dollars spent on just expenses- not attorneys' fees. If we win, yes we'll get paid- like you get paid to do your job. If we lose, we do not get paid. Thanks for the idea of contributing to safety projects to protect and help others. We do it regularly and will look into your suggestion. Maybe the railroad will also look into making their crossings safer even if takes away from some profits.

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