THE RIGHT OF WAY AT RAILROAD CROSSINGS
AND THE ENSUING RESPONSIBILITY 
By: Dr. Harvey A. Levine, Director, Crossing to Safety®

In a number of judicial proceedings involving accidents at unprotected (un-gated) railroad crossings, personnel from defendant railroads have proffered that since trains have the right of way over motor vehicles, the plaintiff motorists are at fault.  This philosophy has been advanced even in cases where adverse physical conditions – that could be considered as ultra-dangerous – were in existence.  After all, these railroad witnesses have claimed that motorists have the responsibility to yield to approaching trains no matter what the environment entails.  Carrying such a proposition to its logical conclusion would mean that railroads are automatically immune from the overwhelming majority of crossing accidents; the exceptions may be where railroads violated federal or State law, but even here, there would be no certainty.  Given such logic, it is little wonder that railroads identify “failure to yield” as the cause of accidents on their monthly reports to the United States Department of Transportation (DOT), Federal Railroad Administration (FRA).  Similarly, it is evident as to why Operation Lifesaver – the federal government and railroad-funded motorist “educational” agency – employs accident data from railroad reports.  Such bias report justifies the existent of that organization.  But what is curious at best, is why the railroad accident reports are relied on by the FRA and why the news media often assumes motorists to be at fault for crossing accidents in their initial post-accident accounts.  It is imperative that government agencies and the media understand that when railroads were given the right of way at intersections with roadways, they were not excused from federal and State legislation, common law, and responsibilities to aide in providing safety to crossing motorists.  The failure of the railroad industry to operate its trains in a safe manner and help to provide safe environments at their crossings, can lead to crossing accidents, injuries and deaths – no matter that the industry has the right of way.  In essence, it is not the failure of motorists to yield at railroad crossings that is the cause of accidents.  Failure to yield is the description of accidents.  The cause(s) is why motorists failed to yield.
   
The basis for trains having the right of way at railroad crossings is both a matter of physics and law.  In regard to physics the rationale is readily apparent.  A 6,000-ton train consisting of 150 freight cars or more, and traveling at a speed of 60-miles-per-hour (permitted on much main-line track), can take up to a mile to stop.  Even if a locomotive  engineer can see a vehicle in front of his (or her) approaching train, he often cannot stop in time to avoid a collision.  On the other hand, a motor vehicle weighing 3,000-5,000 pounds, traveling at 15-35 miles-per-hour (normal speeds when approaching many grade crossings), can often, but far from always, stop in time to avoid a collision.  Furthermore, a train cannot leave the fixed steel rail it traverses on, while motor vehicles can veer in either direction.  It is little wonder that the United States Supreme Court gave railroads the right of way at crossings.  (Grand Truck Railway Company of Canada v. Ives, 144 U.S. 408 (1892).  Furthermore, the acceptance of the railroads’ right of way has been expressed by DOT, federal and State agencies, and many others.  The concept is without dispute as motorists are warned of approaching trains (via automated gates and lights) and upcoming track (via such passive devices as crossbucks and stop signs), while trains are not warned of approaching motor vehicles -- although so-called “whistle boards” are located a quarter of a mile before crossings, thereby informing engineers and conductors that highways (roads) are ahead.  But having the right of way does not mean that railroads do not have both legal and social responsibilities for providing safety to motorists at their crossings. 

As far back as 1877, the United States Supreme Court found that railroads were obligated to give reasonable and timely warning that trains were approaching.  (Continental Improvement Company v. Stead, 95 U.S. 161, (1877).  Then in the landmark Grand Trunk case (see above), the Court concluded that aside from motorist responsibilities at railroad crossings, railroads had to be “reasonable” and “prudent” in their operations.  The Supreme Court agreed with the lower court’s instruction to jurors in this case that:

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances.  The terms “ordinary care,” “reasonable prudence,” and such like terms as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined.  What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence.  The policy of the law has relegated the determination of such questions to the jury, under proper instruction from the court.

Over the past 130 years or so (since Grand Trunk), there have been countless judicial proceedings and related settlements between defendant railroads and plaintiff motorists, that have implicitly and explicitly assigned blame for crossing accidents to railroads.  Railroads contribute to crossing accidents by breaking the law in regard to such factors as exceeding maximum train speeds, not adequately sounding locomotive whistles, blocking crossings (especially at night), not adhering to “stop and protect” orders, and not properly maintaining equipment, safety devices and/or track structures.   Railroads may also be negligent in failing to eliminate motorist sight obstructions, failing to be prudent in installing informational and warning devices, and failing to properly educate their personnel in matters of crossing safety.  In other words, while motorists have the responsibility to look and listen for oncoming trains at railroad crossings (aside from related driving prudence), railroads have the responsibility to adequately warn motorists that trains are approaching.  Importantly, the railroads’ responsibilities at crossings go beyond the law, for as was stated in the Grand Trunk case, a railroad company, under certain circumstances, will not be held free from negligence, even though it may have complied literally with the terms of a statue . . .  Negligence on the part of the railroad was (and has) to be on a case-by-case bases.