CTS Publications

By: Dr. Harvey A. Levine, Director, Crossing to Safety®

During the past year, the New York Times has published an investigative series of articles under the overall banner, “Death On The Tracks.” Various aspects of railroad crossing safety have been addressed. Furthermore, the Discovery Times Channel (cable television) has produced a one-hour documentary on the same subject entitled, “Trouble On The Tracks.” While each publication and the television presentation tell a story in themselves, it is also important to link these various outputs in order to understand the broad, or overall, message.

The major Times articles and a very brief summary of their revelations, are as follows:

July 11, 2004: “In Deaths at Rail Crossings, Missing Evidence and Silence”
Railroads blame victims for crossing accidents and shirk their responsibility by not reporting some accidents, destroying, mishandling or losing evidence relating to accidents, and maintaining a veil of silence. Furthermore, the regulatory authority – the Federal Railroad Administration (FRA) – rarely investigates railroad-crossing accidents.

July 12, 2004: “A Crossing Crash Unreported And A Family Broken by Grief”
By not reporting a prior accident, a railroad adversely affected the potential for an automated gate being installed at a crossing that had an ensuing accident. Then, the railroad withheld important causal information during the initial analysis of the accident.

October 15, 2004: “Amtrak Pays For Others’ Fatal Errors”
Freight railroads have had the political muscle to convince Congress that they should be indemnified against legal/financial claims following accidents involving Amtrak operated on their track structures. As a result, Amtrak has paid out tens of millions of dollars of public money in response to legal claims, even if the accidents were caused by deficient track owned by freight railroads.

November 11, 2004: “For Railroads And The Safety Overseer, Close Ties”
FRA has been overly tolerant of railroad safety problems, reflecting an unusual closeness to the industry it regulates. The FRA Administrator has shared vacations with a lobbyist from a major railroad; many railroad fines for safety violations have been forgiven and/or reduced substantially; and, FRA has been lax in its enforcement of safety regulations.

November 14, 2004: “Safety Group Closely Echoes Rail Industry”
The non-profit, railroad-safety-education organization – Operation Lifesaver (OL) – is tightly bound to the railroad industry and espouses positions that inoculate railroads against liability from crossing accidents. Like the railroad industry, OL focuses on alleged errors in judgment on the part of motorists and pedestrians, and infers (and sometimes explicitly states), that victims are at fault for virtually all railroad-crossing accidents.

December 30, 2004: “Questions Raised On Warnings At Rail Crossings”
There are many signal malfunctions which appear to be under-acknowledged and under-reported by both railroads and the FRA, resulting in the wrong causes of accidents being reported in some cases. Furthermore, innocent victims are deprived of the opportunity for justice.

January 23, 2005: “Highway Agency Disavows Claims Of Rail Safety Group”

The Federal Highway Administration (FHA) admitted that OL’s claim that an FHA study showed that OL was responsible for saving 11,000 lives by preventing crossing accidents, was without merit. No such study had been undertaken.

February 9, 2005: “Deadly Trains”
Regulatory reform is needed to eliminate the shoddiness of federal safety regulation and railroad self-regulation, as well as the inappropriate ties among the railroad industry, FRA, and other safety agencies.

February 18, 2005: “Oversight Is Spotty On Rail-Crossing Safety Projects”
There appears to be a number of instances where railroads have over-charged government agencies for installing automated gates at railroad crossings. Public oversight of such charges is at best spotty, and at worst, characterized by a lack of scrutiny and audit.

March 8, 2005: “Railroad To Pay Over Violations At Railroad Crossings”
A major railroad made a financial settlement with the state of New York, as compensation for violating safety laws. The railroad failed to report and promptly fix hundreds of signal malfunctions at railroad crossings throughout the state.

March 13, 2005: “Deaths At Rail Crossings, After Decline, Go Back Up”
In 2004, the death rate from railroad-crossing accidents increased by 11 percent. Federal transportation officials declined to comment on this increase, but several sources questioned the commitment of the railroad industry to railroad-crossing safety.

March 27, 2005: “Texas Official Admits Missteps That Helped Railroads In Suits”
An employee of the Texas Department of Transportation admitted that railroads drafted his testimony presented in depositions relating to railroad crossing accidents – depositions that claimed that federal money was used to provide information/warning devices at crossings – although there was no evidence of such activities. The result was the dismissal of legal action filed by accident victims.

When the Times articles and the similar made-for-television documentary are united, they present a rather dismal view of the safety net allegedly protecting motorists at railroad crossings. In a nutshell, the articles characterize the administration of railroad-crossing safety as being inefficient, containing substantial irresponsibility, and demonstrating evidence of corruption. Two broad questions immediately come to mind. (1) How could these deplorable conditions have existed without public outrage and investigation? and (2) What factors induced the insider behavior as described by the New York Times. I believe that the answers to these questions are inter-dependent and revealing of a culture void of responsibility and accountability.

On the first score, it is quite clear as why public apathy ranks supreme in regard to the overall system of railroad-crossing safety. First, railroad-crossing accidents tend to occur in rural areas where such crossings are a fact of life (a long history) and whose coverage extends to small-town newspapers. Second, deaths from crossing accidents are most often in the one-to-two range, thereby limiting wide spread public shock and/or outrage. Third, FRA and the National Transportation Safety Board investigate very few accidents. Fourth, first responders to railroad-crossing accidents often accept the explanation of the train’s engineer and/or conductor, blaming the victim for the collision. Fifth, OL stresses the interrelated themes of victim-at-fault and needed-driver-education, without commenting on deficient crossings. Six, the victim-at-fault mantra has been generally accepted by a public that is unfamiliar with the underlying causes of crossing accidents, the ultra-dangerous conditions of many crossings, and the complexities of the administrative safety network. And finally, the declining accident rate (largely due to railroad downsizing, crossing closures, and gate installations) has provided cover for administrative deficiencies. In view of public ambivalence, there is no national victims’ advocate organization or ombudsman. Consequently, there is also no political pressure on elected officials to lead the charge for reform of the safety system. In fact, up until the Times series, there was almost no public acknowledgement of problems with the administrative safety system.

As to the reasons for system deficiencies, it is logical to start with the railroad industry, for railroads own half of the public railroad crossings, and operate the trains that intersect with our nation’s roads. Freight railroads constitute a privately-owned and operated industry that attempts to maximize profits in order to attract and retain capital investors, while at the same time, reward executives with supplemental income tied to profit levels. At the same time, it is vested with a public nature. The industry lobbies political leaders at both the federal and state levels. It has close ties to FRA, the National Transportation Safety Board, the Surface Transportation Board, and state departments of transportation, among others. It helps to fund OL, serves on its Board of Directions, and provides facilities, equipment, and employees to OL’s educational efforts. It does what it can to avoid exposure to crossing accidents and to minimize expenses related to railroad-crossing safety. It preaches that for the most part, railroad-crossing safety is a highway responsibility and that it has no obligation to identify safety needs at crossings, and to help pay for ensuing improvements. The Vice President of the United States has served on the Board of Directors of the Union Pacific Railroad and the Secretary of the U.S. Treasury was previously the President of the CSX Railroad. Other ex-railroad executives work in the current presidential administration. And railroads have made substantial contributions to political campaigns. Given the railroad industry’s connection to OL, it is not surprising that this educational entity mirrors railroad positions.

FRA is another matter. It’s constant excuse is that it is under-funded, under-manned, and restricted by a limited federal legislative mandate. While these factors may be true to varying degrees – especially, federal legislation, FRA: (1) has been led by Administrators with at best, dubious professional capabilities (2) has been extremely lenient in fining railroads for safety violations to extremely low levels (3) has taken up to 10 years to complete (4) has almost never investigated railroad-crossing accidents (5) has not been pro-active in recommending changes in federal safety legislation (6) has viewed railroads as partners, rather than a regulated industry, in trying to resolve safety issues, and (7) has not represented the victims’ and/or motorists’ perspective in regard to railroad-crossing issues. Furthermore, FRA railroad-crossing data is dependent on railroads for the proper submission of inventory and accident information. FRA readily admits that it does not audit railroad-submitted data and cannot vouch for its accuracy. My speculation regarding the weaknesses of FRA, not surprisingly, goes to self-interest. By embracing the victim-at-fault mantra and limiting its scope of involvement in railroad-crossing matters, FRA coveys favor with the industry in which it has a revolving-door employment history. At the same time, FRA avoids accountability and criticism from the railroad industry and its political supporters.

In conclusion, my analysis has been extremely brief, for the railroad-crossing environment is a complicated world of private and public interests, bureaucracy, interwoven federal and state legislation, economic motives, political interference, shared responsibilities, and a lack of transparency. Obviously, the New York Times series has identified a number of deficiencies of the safety network and is highly critical of insiders. I am struck by a major constant throughout the articles, and in fact, throughout the Byzantine system that allegedly protects us -- and that is the presence and influence of the powerful railroad industry. Change will require more effective regulation of this industry, but it could be helped by some voluntary actions on the part of railroads. First, I believe that the railroad industry should cut its ties to OL. After all, the railroads preach that railroad-crossing safety is a highway issue, so it has no business treating motorist education as a railroad issue. Second, railroads could be much more effective in self policing. It needs well-trained track inspectors who view railroad crossings from both the railroads’ and motorists’ points of view. And third, it would be in the public interest for railroads to acknowledge their responsibilities for railroad-crossing safety, and be pro-active in identifying crossing needs and helping to fill those needs.

At the same time, FRA seems to need a major overhaul. Its Administrators must be more than political appointees; they must have technical qualifications and managerial experience, and understand their role in helping to protect the public. If added funding and manpower are true needs, Congress should step to the plate. And OL should alter its messages and presentations from solely concentrating on motorist behavior, to balancing motorist and crossing characteristics and needs. Finally, Congress should enact needed, uniform legislation that eliminates regulatory variance and inconsistencies among states in important areas (such as motorist sight obstructions) of railroad-crossing safety.



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