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Train Accident Litigation: A Primer for Injured Railroad Workers and Passengers, Pedestrians and Motor Vehicles Involved in Railroad Crossing Collisions

John D. Winer, San Francisco

A. Who Can Sue for Injuries or Death in a Train Accident.

i. Train companies have different duties and responsibilities depending upon whether the plaintiff was a passenger, train worker or not on the train.

Anyone who is injured or is a survivor of someone killed by the negligence of a train company can sue; however, there are three different sets of rules in train litigation depending upon whether:

  • the plaintiff was a passenger on the train.
  • the plaintiff was an employee of a train company.
  • the plaintiff is a driver or passenger of a vehicle that collides with a train or is a pedestrian that is hit by a train.

In addition, the spouse of an injured plaintiff can also bring his or her own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

ii. A train company owes passengers utmost duty of care.

In the case of a passenger on the train, the train company owes the plaintiff the “utmost” duty of care because of California “common carrier” law that will be explained in more detail below.

iii. A train company owes ordinary duty of care to anyone not on the train.

In the case in which the plaintiff was not on the train at the time of the accident but, rather, was in another vehicle or a pedestrian, general California rules of negligence apply as will be explained below.

iv. Special rules for train company responsibility to railroad workers.

When the injured plaintiff is an employee of the railroad, such as a conductor or porter, special rules of law apply under the Federal Employers’ Liability Act (FELA). Each type of case will be dealt with separately in this article.

B. Who Can a Person Involved in a Train Accident Sue.

Any person involved in a train accident, whether a passenger, railroad employee, pedestrian, driver, driver of another vehicle or a passenger in another vehicle, can sue whatever person or entity is responsible for the train accident. This includes not only the train company, but drivers of other vehicles, manufacturers of the train or other vehicles, the owner or person in possession of the site of the accident if it was maintained in a dangerous condition and any other person or entity as long as they are found to be at fault and contributed to the accident.

C. Duty of a Train Company to its Passengers.

i. Common carrier liability generally.

As stated above, because a railroad company is considered to be a common carrier, the company and its employees owe a duty to exercise the utmost care to passengers.

This means that the railroad company must use “the utmost care and diligence” for the safe carriage of passengers, providing everything necessary for that purpose and a reasonable degree of skill.

Further, the railroad company employees and company must do all that human care, vigilance and foresight can reasonably do under the circumstances, and is responsible for even the slightest negligence.

However, the railroad company is not an insurer of the safety of its passengers, and will not be found responsible unless there is at least “some” negligence.

Further, the utmost duty of care also applies to the maintenance and servicing of railroads. A railroad company must exercise the utmost care to provide safe, suitable and efficient vehicles for the conveyance of the passengers. This extends to servicing, inspecting and maintaining the equipment.

ii. When the duty to a passenger begins.

The railroad company’s duty to exercise the utmost care for passenger safety begins when:

  • a person puts himself or herself under the carrier’s control or otherwise manifests an intent to board; and
  • the railroad company or its operator manifests acceptance of the person as a passenger.

A railroad company can be found liable for the following acts:

  • attempting to load in an unsafe place.
  • starting before the passenger is safely seated.
  • starting before the passenger is safely aboard.
  • closing a door on a passenger.
  • failing to maintain safe steps or entrances.

iii. When does the duty of utmost care to a passenger end?

The duty of a railroad to a passenger ends, generally, after the passenger has left the train. However, the utmost duty of care remains until:

  • the passenger has safely left the train.
  • at a relatively safe place.
  • out of the way of other traffic.
  • no longer exposed to risks of the train’s operation.

iv. Duty to assist passengers.

Other than the disabled, or people with special needs, the railroad employees have no duty to assist passengers in boarding or exiting. However, when a railroad employee does assist a passenger in boarding or exiting, they must use due care in doing so.

Further, a railroad employee must give special assistance to a passenger who needs it because of age, illness or other conditions, if this need is known or apparent to a employee.

v. Common carrier’s duty to protect passengers from assault.

A railroad company may be liable for failing to use the utmost care and diligence to prevent one passenger from injuring another.

However, even under the “utmost care” standard, a railroad company is not liable for failing to prevent an attack that it did not know, or could not have known, was about to occur.

Further, in the case of public entities, there may be additional immunities from liability from assaults of third persons on passengers.

vi. Common carrier liability can extend to maintenance of railroad stations.

Under certain circumstances, a railroad company is even responsible to utilize the utmost care in maintaining railroad stations. The railroad company has a duty to stop its train at a place reasonably safe for passengers to board and alight and must use the utmost care in maintaining stations and conducting operations in them to avoid injury to boarding or alighting passengers.

D. Responsibility For Train Accidents That Occur at Railroad Crossings And on Railroad Property.

i. Accidents that occur on railroad property or involving trains but do not involve railroad crossings.

a. Non-crossing accidents generally.

The rights of train passengers to sue a train company for an accident which occurs anywhere have been discussed in section “C.” There are special rules for railroad crossings which will be discussed in section “E.”

Accidents that occur on railroad property are covered under general California premises liability law, though there may be special statutes and regulations that train companies must follow that might create special responsibilities.

Basically, in those situations, a plaintiff can sue if the property is maintained in a dangerous condition and the dangerous condition caused plaintiff an injury.

b. Circumstances when railroads are not responsible for dangerous condition.

The California legislature and courts have created several exceptions that apply to railroads to the general rule that a property owner is liable for injury resulting from a failure to use ordinary care and skill in the management of their property.

One of those exceptions is California Civil Code section 1714.7 which states:

“No person who was injured while getting on, or attempting to get on, a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who, having gotten on a locomotive or railroad car while in motion without such authority, is injured while so riding or getting off, shall recover any damages from the owner or operator thereof for such injuries unless proximately caused by an intentional act of such owner or operator with knowledge that serious injury is the probable result of such act or with a wanton and reckless disregard of the probable result of such act.”

In other words, a person who is injured by a train, or train property, has the same right to sue as anybody else with the exception of all people who illegally try to “jump on trains” who can only sue if they can prove intentional misconduct on the part of the railroad or a railroad employee.

E. Train Accidents Involving Railroad Crossings.

i. The care owed by a train company to pedestrians and motorists at a railroad crossing.

A railroad company and its train crew must use reasonable care, under the circumstances, in light of the probable danger, to avoid injury to anyone traveling on roads crossed by the company’s tracks.

This is a duty of ordinary care (as opposed to the duty of utmost care owed to train passengers) and it applies to both train operation and maintenance of train crossings.

Further, it is considered wilful misconduct for a railroad that has actual knowledge of a peril or has created a peril or danger from which injury is a probable result to consciously fail to act to avoid peril.

ii. Duties of train operators and crew.

a. Train operators and crew owe a duty to use ordinary care.

A railroad company must always use ordinary care in the movement of its trains over:

  • private or public road crossings.
  • places where it knows that the public customarily crosses the tracks even if the plaintiff is a trespasser.

b. Duty to sound warnings.

This duty of care in operating trains includes:

  • the train crew must ring a bell or, except in cities, sound a whistle for a distance of at least a quarter mile before crossing any street, road or highway and until the train has passed the crossing.

This is a statutory responsibility and if it is not followed, there is a presumption of negligence. However, this is a minimum standard and a railroad can still be found liable for negligence if this statute is complied with.

The fact is that the crew owes a duty to give notice of an approaching train by all warnings reasonably necessary under the existing conditions which include the motorist’s ability to observe the train’s approach.

c. Reasonable speed requirement.

A train operator has a duty to conduct a train at a reasonable speed, and there are various local statutes and ordinances that limit the speed of trains. Violation of one of these local speed laws is considered negligence as a matter of law.

In more populated areas, a railroad must regulate train speed with due regard for the safety of others considering the location and condition of the crossing.

d. Reasonable lookout requirement.

A train crew must keep a reasonable lookout for traffic at intersections in places where traffic should be anticipated. The train operator has a responsibility for keeping the train under the control reasonably necessary to cope with “foreseeable situations.”

In fact, the California courts have held that a railroad is responsible for the improper “lookout” of train crew despite the existence of an automatic crossing signal.

F. Duty of a Railroad in Maintaining Crossings.

A railroad company must post signs giving a reasonable warning of the presence of its tracks.

Failure to place warning lights or barriers at an ordinary railroad crossing may be negligence.

Some crossing protection is mandated by the California Public Utilities Commission. This creates a minimal standard of care; however, greater care may be needed under the circumstances including fencing to protect young children at customary crossings for play areas.

The given circumstances may require the railroad company to do more than merely comply with safety statutes or rules. For instance, ordinary care may require the railroad to provide automatic crossing protection or a flagman at crossings that present an unusual hazard, whether or not any regulation so provides.

In addition to warning systems, a railroad must use due care in the design, construction, operation and maintenance of its signal and protective systems.

In fact, railroad employees have a duty under railroad regulations to detect and report dangerous conditions at railroad crossings.

G. Duty of Drivers, Motor Vehicle Passengers and Pedestrians at Railroad Crossings.

i. Motor vehicle drivers must use reasonable care.

A driver approaching a railroad crossing is required to look and listen with care, but is not necessarily required to stop in absence of a stop sign or signal device.

The test is whether the driver used reasonable care to discover a train’s approach.

ii. Pedestrians and motor vehicle drivers must use due caution whether or not warnings.

If a driver or pedestrian disregards an automatic signal device, crossing gate, flagman or audible warning, there is a “presumption” that the driver or pedestrian is negligent. However, this presumption can be rebutted by evidence that:

  • the signal was not clearly visible.
  • the driver reasonably believed that the signal was activated by a stopped train.

Even if the railroad crossing does not contain any warning signs or signals, a driver or pedestrian must still use ordinary care when approaching railroad crossing; however, the driver does not have to use the same amount of care as would otherwise be necessary.

H. Accidents to Railroad Employees Special Rules and Considerations.

i. Generally.

The Federal Employee Liability Act (FELA) is the sole and exclusive remedy in an action by a railroad employee against his or her employer. A lawsuit may not be brought under any other statute.

However, unlike other industries in which a worker’s claim against an employer is limited to minuscule benefits, the FELA allows railroad employees the right to recover significant damages as will be discussed below.

ii. Who does the FELA apply to.

The FELA applies to employees of any railroad engaged in the interstate transportation of people or goods. It is applicable even to railroad operations that are limited to a single state if that railroad transports people or goods in interstate commerce.

Railroad terminal companies will be subject to the FELA if they control the movement of trains involved in the transportation of people or goods in interstate commerce.

iii. Employer duties under the FELA.

The FELA imposes the following duties on railroad companies:

a. Duty to provide training.

If a railroad does not train an employee properly, it can be held liable for injuries from the inadequate training or inexperience if it can be shown that the inadequate training or inexperience led to the injury.

b. Duty to provide help.

As part of its duty to provide a reasonably safe workplace, a railroad is required to make sure that a worker does not have to perform any duties which exceed his or her capabilities.

c. Duty to provide safe equipment.

A railroad employee can establish liability by proving that a piece of railroad equipment that caused an injury was not reasonably safe for the intended purpose.

d. Duty to provide safe tools.

If a railroad supplies tools that are not reasonably safe, it is liable for injuries sustained by workers who use them.

e. Duty to enforce safety or departmental rules.

A railroad company must make every effort to enforce rules and regulations. Further, a railroad company cannot use the negligence of an employee as a defense if it does not follow its own rules.

f. Liability for rushing workers.

Railroads will be found liable for injuries resulting from employees who are rushed to meet work quotas.

g. Duty to inspect.

A railroad has a duty to inspect its premises to determine that all conditions are safe. Unlike most dangerous condition cases, a railroad employee does not have to prove that the railroad knew or should have known of an unsafe condition — it is presumed that the railroad knew, since it controls the workplace and the assignments that its employees must perform.

h. Duty to guard against intentional acts.

A railroad has a responsibility to take reasonable steps to prevent injury to its employees by intentional acts of other employees or people outside of the company. A railroad has to exercise this duty to take reasonable measures to protect the plaintiff from a foreseeable danger.

iv. The defenses of a railroad company are limited by the FELA.

Unlike most personal injury cases, the railroad in a case involving an injured railroad worker cannot claim as a defense:

  • assumption of risk.
  • the negligence of a fellow employee.

v. The unsafe place to work doctrine.

The FELA imposes on railroads the duty to use reasonable care to provide each employee a safe place to work. This includes reasonably safe fellow employees and reasonably safe track, roadbed, cars, locomotives, machinery, tools or other equipment.

It is said that this duty is absolute, continuous and non-delegable (i.e., the railroad cannot pass it on to a contractor).

vi. An employee must prove negligence.

In order to hold a railroad company liable, the employee must establish that the railroad company was negligent in causing the employee’s negligence.

The negligence standard in FELA cases is the same as under California law which is that a person or entity is negligent if they do something which a reasonably prudent person would not do or fails to do something which a reasonably prudent person would do under the circumstances.

Here, the reasonably prudent person standard is that of a reasonably prudent railroad company.

vii. Railroad employees are entitled to recover in cumulative trauma cases.

It is not uncommon for railroad employees to develop serious injuries and illnesses over time due to the conditions under which they work. This can include loss of hearing, lung diseases and problems with every joint of their body.

In order for the plaintiff to recover in a cumulative trauma case, they must prove that the railroad violated its legal duty to provide a safe workplace. If plaintiff can establish that the railroad failed to provide a safe workplace, and then can prove that the railroad’s negligence contributed to the disorder, the claimed injury or illness, the plaintiff will prevail on liability.

viii. Standard of causation in FELA cases.

In most cases in California, a plaintiff must prove causation by establishing that an accident was a substantial factor in causing the plaintiff’s injury. In FELA cases, an employee has a different test, to show that the employer’s negligence was the “most likely cause of the injuries, or the cause without which the injuries would not have occurred.”

The employee only needs to prove that the employer’s negligence played some part in causing the employee’s injury.

ix. Plaintiffs can recover under the FELA for emotional stress as well as physical injuries.

Under the FELA, plaintiffs can recover for purely emotional injuries as well as physical injuries that cause emotional distress in very limited circumstances.

However, in order to recover for a purely emotional injury, a plaintiff must establish:

  • some physical impact or touching no matter how slight.
  • that the emotional injury was accompanied by a physical injury of some kind.
  • an employee was present at the accident scene and be closely related to the victim.
  • that the employee was close enough to the negligent act to fear physical harm.

x. Damages in an FELA case.

a. Injury cases under the FELA.

A railroad worker who is injured as a result of the negligence of the train company can recover:

  • medical expenses, if not paid by the railroad or by insurance provided at the railroad’s expense.
  • past and future loss of earnings.
  • compensation for loss of earning capacity, i.e., if the plaintiff has to take a lower paying job because of the injuries.
  • compensation for pain and suffering in the past and in the future.

b. Death cases under the FELA.

In a case in which an employee dies as a result of the negligence of the defendant, the survivors are entitled to recover damages for:

  • pain and suffering for the period between the injury and death.
  • funeral expenses.
  • that part of the decedent’s earnings which were being contributed to their actual support.

xi. Where can an FELA action be brought.

A lawsuit involving a railroad worker suing the railroad can be brought in any Federal district or State court where the accident occurred. In California, plaintiffs are generally better off in State court especially if the case can be brought in a large city.

I. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

J. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to the injury. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

K. Statute of Limitations.

In any case by a railroad worker against the railroad, the plaintiff has three years from the date of the injury or death to bring the case. In the case of cumulative trauma, the plaintiff has three years from the date of the discovery of the disease and its relationship to the plaintiff’s occupation.

However, it should be noted that if the plaintiff is suing anybody other than the railroad, the statute of limitations is one year like in most other cases in California.

L. Special Considerations in Retaining Experts in Railroad Accident Cases.

Unless the railroad admits liability, most train accident cases will require the testimony of an expert witness for plaintiff to prevail. An expert should generally be retained at the very beginning of the case to help with the investigation.

In the case of railroad crossing collisions, it is generally desirable to retain an expert who has special expertise in the fields of crossing design and maintenance. Further, it may also be necessary for the plaintiff to retain an accident reconstruction expert with a specialty in train cases, who can analyze the various factors that contributed to the accident.

In addition, a human factors expert, i.e., an engineer with combined engineering and psychology training, may be useful to analyze the behavioral factors that contributed to the accident such as perception and reaction time for both plaintiff and the defendant and the reasonable and expected behavior of the plaintiff as he or she approached the railroad tracks and the reasonable or expected behavior of the train operator in approaching the tracks or once he or she became aware of the danger.

In addition, experts must sometimes be retained to analyze the standards set by the railroad company for trains passing through intersections and a study as to whether the subject train and operator complied with those standards.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases.

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