Several years ago, after being lectured to by an official with the Federal Railroad Administration (FRA), United States Department of Transportation (DOT) that motorists are always at fault for grade-crossing collisions because they fail to yield to approaching trains, I decided to ask a question long on my mind. I offered a scenario as the premise – one that was far from extreme. “If you are driving on a road at a legal speed of 40 miles-per-hour -- with cars both in front of and behind you -- and the road elevates to a two-track, main-line railroad grade crossing -- and overgrown vegetation and trees block your vision up and down the track -- and you are facing a bright sun to the left -- although the only traffic sign in front of the crossing is a crossbuck, would you slow down to a complete stop just before reaching the track, even though the cars in front and behind you are retaining their 40 mile per-hour speed?” Without hesitation the FRA official gave an emphatic, “Of course. Motorists must yield to trains no matter what the conditions.” I then reminded him that it would be impractical and probably dangerous to stop at a rail crossing in the middle of a line of cars legally traveling at 40 miles-per-hour. He was incensed enough to stop eating his lunch. “No wonder we have so many incidents,” he said, “With your kind of thinking, I’ll never be out of a job.” He then went into a mini-tirade about the poor driving habits of motorists. Right then and there I realized that what I had already suspected, was reality. Absolute victim blame for grade-crossing collisions was the underlying philosophy of our nation’s railroad-safety, regulatory agency. FRA had bought into the railroads’ position that motorists were fully to blame for virtually all rail-crossing accidents. I thought that if this thesis was truly the case, then there was little, if any, difference between a collision involving an irresponsible driver circling a depressed automated gate in order to save time, and a responsible motorist carefully advancing through an unprotected crossing where his or her vision was significantly obstructed. Furthermore, I knew that the courts had found railroads to be a fault in a number of grade-crossing collisions, and my inspection of hundreds of grade crossings revealed that many were characterized with serious motorist sight obstructions and deficient conditions. Needless to say, I was troubled. But soon thereafter, another arm of DOT gave me cause for alarm, if not downright anger.

In its June 16, 2004 Audit of the Highway-Rail Grade Crossing Safety Program, DOT’s Inspector General (IG) concluded that:

Motorist Behavior caused most public grade crossing accidents.
Risky driver behavior or poor judgment accounted for 31,035 or 94 percent of public grade crossing accidents and 3,556 or 87 percent of fatalities, during the 10-year period. With the exception of 22 train passengers and railroad employees, all of these fatalities were motorists. According to accident reports, motorists failed to stop at grade crossings or drove around activated automated gates.

As expected, the 94% figure representing victim blame, was pounced on by the railroad industry. Edward R. Hamberger, President of the Association of American Railroads, responded to a critical New York Times/Discovery Channel documentary on grade-crossing safety, by stating that, . . . a recent report by the Inspector General (IG) of the U.S. Department of Transportation found that 94 percent of grade crossing fatalities are attributable to risky driver behavior. I wondered. Where did the 94% figure come from? A credible analysis undertaken by the IG or accident reports filled out by railroads? Although the IG report used the words, According to accident reports, it was unclear as to the application and depth of IG analysis. Furthermore, the IG’s report headlines representing the 94% figure gave the impression of a conclusion – not an inference dependent on the credibility of railroad-provided data. So I called the IG office to inquire about the source of the 94% figure. The answer was, unfortunately, as expected.

In a nutshell, the 94% victim-to-blame figure came from railroad accident reports filed with FRA. With rare exception, on those forms, railroads identify the cause of grade-crossing collisions in two ways. If the crossing is unprotected, the cause is “motorist failure to yield.” If the crossing has a gate, the cause is “motorist encircling an operational, depressed gate.” In essence, the IG did no analysis of grade-crossing collisions. It simply accepted one-sided railroad reports that at best, are subject to bias and misrepresentation. Furthermore, “failure to yield” is not a cause of grade-crossing collisions. The cause is the reason why motorists fail to yield to approaching trains. And motorists may go around depressed gates because they have malfunctioned and been down for long periods of time, with no train approaching. Finally, FRA hardly ever investigates grade-crossing collisions and has no first-hand knowledge of the relative causes of such accidents.

There are two major problems with the 94% figure. On one level, there is evidence that the figure will be canonized as the truth, when in fact, it is not. Single numbers published in a report by federal agencies can take on a life of their own, especially when there is no quantifiable evidence to refute the number – and especially when they support the position of an industry with strong financial capacity and political influence. On a broader level, it is disturbing that FRA and the railroad industry seem to take similar, unsupported positions in a matter of life and death – and it is doubling disturbing that the IG has joined in the fray. The truth of the matter is that there is no reliable study of the relative causes of grade-crossing collisions. In judicial proceedings, blame has been attributed to motorist behavior, railroad failure to sound the locomotive warning system in a prescribed manner, excessive train speed, motorist sight obstruction in approaching crossings, defective track conditions, and failure of crossing safety devices such as malfunctioning gates. Even Operation Lifesaver – dedicated to responsible motorist and pedestrian behavior at grade-crossing dangers – has recently stated on its web site, that its . . . messages do not suggest blame for rail-related incidents. Grade crossing collisions and pedestrian incidents may occur for a variety of reasons.

In response to a request from Congress, which in turn had been spurred by a series of articles in the New York Times during 2004, the IG is once again investigating the behavior of FRA. The initial part of the investigation is a concentration on the process and validity of railroad accident reports to FRA. This focus presents the IG with an opportunity to correct a major past error – that being, giving the impression that it has concluded that 94% of grade-crossing collisions are due to victim error. All the IG really knew when it published its report in 2004, was that in 94% of the grade-crossing accident reports that railroads had filed with FRA, the industry claimed that victim error was the cause of the collisions. This is far different than the IG concluding anything about the cause of grade-crossing accidents. It is time for FRA and the IG -- both components of DOT -- to correct the misleading figure they have advanced. In the end, it is time for these federal agencies to represent the general public and the cause of efficient and effective grade-crossing safety.