Volume 12 Issue 2                                                                  April 2005


RAILWAY CLAIM SERVICES, INC.                          Our 18th Year of Service










Railway Claim Services, Inc. (RCSI) can perform background checks for potential job applicants.  RCSI can also check injury histories for employees.  For further information contact Elizabeth Vineyard of RCSI at 731-967-1796, or via email at evineyard@railway-claim-services.com.


When is a trespasser/invitee not a trespasser/invitee?  Well, one instance may be when the person in question is a “recreational user”.  In the past, this definition has been used primarily in conjunction with abandoned trackage that has been converted to bicycle trails or other public usage.  It has occasionally been useful in cases that might have traditionally been considered invitee claims.  One case in particular that comes to mind involved a 1) four-wheeler 2) an operator 3) a case of beer 4) a seldom used stretch of railroad track and 5) a bridge that had been demolished to make way for a new span.  You can see where this is going, can’t you?  Mr. 0.28 BAC was tooling down the right-of-way at an estimated 35 MPH when he suddenly came upon the “bridge that wasn’t there”.  His widow filed suit.  Plaintiff’s counsel demanded millions of dollars.  The Railroad should have known that the right-of-way was used by ATV riders.  The Railroad created a trap by removing the bridge.  Never mind the fact that he would probably have killed himself even if the bridge had been in place.  Testimony would show that the deceased had traversed the bridge many times in the past.  The defense wizard pulled out a copy of Mississippi Code Annotated Title 89 Chapter 2, Article 1.  Result – Summary Judgment in favor of the defense.  We at RCSI did a little research and found that most states now offer protection to landowners from lawsuit happy recreational plaintiffs.  A summary of state laws was compiled by American Whitewater and can be found at their website:  http://www.americanwhitewater.org/archive/article/123/ .  If you currently have a trespasser claim, have your defense counsel take a look at the recreational statute in your state to see if there is any relief offered by statute.  If it involves a four-wheeler, snowmobile operator, mountain biker, hiker, hunter, or fisherman, you may be pleasantly surprised. 

To quote from American Whitewater’s website, “Recreational Use Statutes generally provide that a landowner does not owe, to one using his of her property for recreational purposes and without charge, either a duty of care to keep the property safe for entry or use, or a duty to give any warning of a dangerous condition, use, structure, or activity on their property.   Under prior common law (law made by precedent), the landowner had different duties of care depending on whether a person was on the land as an invitee, licensee, or a trespasser. The greatest duty of care was owed to an invitee and no duty was owed to an unknown, adult trespasser. Under a Recreational Use Statute, recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care.”

We have a couple of test cases working right now to determine the extent of protection offered by these statutes; a trespasser falling through a trestle and a drunk taking a shortcut home.  I’ll let you know how these turn out.


Railway Claim Services, Inc. maintains a website containing useful information for our industry.  If you haven’t visited our website recently, you may have missed some of the content recently added.

The Code of Federal Regulations, TITLE 49—Transportation, Subtitle B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION is the Bible for our industry.  Several years ago I purchased a complete set and use it on a regular basis.  I am frequently contacted by shortline operators with questions relating to safety rules and regulations.  Rather than paraphrase the rules, I try to refer these questions to the specific part of 49 CFR applicable.  At times, the operator may not have a copy of 49 CFR.  If you are in the railroad business, you cannot be without this.  Recently I came across a complete copy of 49 CFR in electronic format on the Internet.  If you have any questions regarding 49 CFR, please visit our website and click on the following link.  http://www.railway-claim-services.com/waycar.htm  

We have the complete General Code of Operating Rules posted on our website for your viewing.  http://www.railway-claim-services.com/safety_first.htm

As a Railroader, you have heard of the FELA.  Do you ever wonder exactly what is included in the Federal Employers’ Liability Act?  You can read the entire text on our website. http://www.railway-claim-services.com/waycar.htm  

 We are always trying to upgrade our website and make it a place for you to find the information you need.  If you have any suggestions, comments, or questions, please feel free to contact me at your convenience.  I would appreciate your feedback.


1.  "I have some good news and some bad news," said the doc following my last checkup. "OK," said I, "give me the good news first." "Well," said the doctor, "they're going to name a disease after you!"

 2. Some people are alive only because it's illegal to kill them.  However, in some parts of the South and West, it is still a reasonable defense to say, "The rascal needed killing!"

 3. The gene pool could use a little chlorine, or perhaps a sign saying, “No Wading.”

 4. Consciousness: That annoying time between naps.

 5. Ever stop to think, and forget to start again?

 6. Being "over the hill" is much better than being under it!

 7. A journey of a thousand miles begins with a cash advance

3. Stupidity is not a handicap. Park elsewhere!

9. They call it PMS because "mad cow disease" was already taken.  I’m gonna regret saying that, I know I am.

10. He who dies with the most toys is nonetheless dead.

11. Ham and eggs; a day's work for a chicken, a lifetime commitment for a pig.

 12. The trouble with life is there's no background music.  On second thought, the way my life has been going, the crashing of cymbals might drive me over the edge.  

13. The original point and click interface was a Colt .45.

14.  I think my Living Will is too well written.  Now, whenever I oversleep, my wife unplugs the electric blanket.


From our friends at Railway.com ( 3/07/2005 ) U.S. railroads reported 13,504 accidents and incidents in calendar 2004, a 4.5% drop from the prior year despite increased train traffic. Fatalities, however, rose 3.6% to 896. These included 480 trespasser deaths, down 4.4% from 2003, and 369 fatalities in grade crossing collisions, an increase of 11.5%. Train accidents were up 3.7% to 3,104 though the train accident rate—taking into account exposure to risk—dropped 1.4%. Collisions increased 27.5%, to 255, and derailments rose 5.7%, to 2,236. Yard accidents were up 4.2% last year, to 1,712.


As a claims professional of 30+ years, I became comfortable with what is known as the Occupied Crossing Rule; also known as the Standing Train Doctrine.  This was an element of common law that essentially said, “One who drives headlong into a train standing across a highway cannot be heard to complain of negligence because of the absence of any special warning, since the position of the train itself is the warning.” I don’t know how far back this ruling dates, but in the 1940’s, it was amended to include trains occupying the crossing.  One cite I am familiar with is Brown vs. Loftin (1944).  In Brown v. Loftin, the Court addressed the question of whether the doctrine encompassed accidents with moving trains. The plaintiff in Brown drove her automobile into the seventeenth car of a thirty-two car freight train while it traversed a street crossing. The trial court dismissed the plaintiff's complaint for failure to state a cause of action. The plaintiff argued that the Standing Train Doctrine was limited to accidents with standing trains. In Brown the Court found such a distinction unavailing, applying the doctrine and affirming the trial court's dismissal of the plaintiff's complaint.  Despite Brown's affirmation and extension of the doctrine, the Court gradually eroded the unforgiving approach of the earlier cases. Instead it began to consider the allegations of special circumstances previously deemed irrelevant.  As the Twentieth Century drew to a close and the Twenty-First Century opened, the Courts have tended to give less and less credence to the Occupied Crossing Rule.  In 1992, the Tenth Circuit Court of Appeals said of the Occupied Crossing Rule, “Such a doctrine is a legal dinosaur in the landscape of modern tort law:  This appeal unlooses a legal dinosaur, which, once out, tramples twentieth century negligence law and then lumbers back to its dark cave only to await another victim. The jurisprudential fossils it leaves behind are truly daunting." Hurst v. Union Pacific R.R., 958 F. 2d 1002, 1003 (10th Cir. 1992).  The course many Courts now take is to consider sole proximate cause.  The Occupied Crossing Rule is still a valuable defense tool, but it must face certain challenges.  The question of whether the plaintiff's negligence was the sole proximate cause of the accident turns on the proof as to (1) visibility at the time and place of the accident, (2) location of the locomotive and freight cars at the time of the accident and (3) condition of the approach to the crossing.  If the accident occurs during a time of good visibility; with the train fully occupying the crossing well in advance of the approach of the auto and the approach to the crossing is not obscured in any way, the Occupied Crossing Rule can still be applicable.  The obvious presence of a train on a crossing is a pretty good indication that the crossing is occupied.  This remains a good visceral argument to make to a jury.  If appropriate in the particular jurisdiction, an Occupied Crossing charge to the jury is invaluable.  In 1997, the New York Appellate Division reversed a $2,286,000 verdict on the basis of the Trial Court’s failure to give the jury the Occupied Crossing charge.  Something to think about.  


Locomotive Inspection Act – Locomotive on storage track in engine house ruled “In Use” by Massachusetts Federal Court.  This locomotive engineer had completed his trip, uncoupled the locomotive from the freight cars and moved the locomotive to the engine house where he stopped the locomotive on a storage track.  He then shut down the engine and set the automatic brake.  He then proceeded to set the hand brake as required by the railroad’s rules.  As he was doing so, the brake wheel unexpectedly freely rotated, causing him to lose his balance and fall.  He sustained injuries to his back.  His attorney filed a Motion for Summary Judgment on the applicability of the Locomotive Inspection Act.  Defense opposed this motion on the grounds that the locomotive was not “In Use”, referring to several cases in which locomotives located on storage tracks were found not to be “In Use”.  The District Court granted plaintiff’s motion ruling that the engine house was only temporary storage for locomotives that were waiting to return to service.  There was no service or maintenance provided in the engine house, as had occurred in cases cited by the defense.  Horibin v. Providence & Worcester Railroad, USDC for the District of Massachusetts, Case # 03-40013-FDS

Montana Supreme Court rules that any violation of 45 USC 53 bars contributory negligence defense – In the underlying trial, evidence showed that a railroad employee had accompanied a supervisor in a hi-rail trip to inspect a section of track.  The supervisor had obtained a track warrant, but had ridden four miles past the limits of the track warrant when the hi-rail vehicle was struck by a train.  The employee died as a result of his injuries.  Counsel for the plaintiff filed a Motion for Summary Judgment asserting the railroad was negligent per se based upon the fact that the supervisor had violated the track warrant.  Plaintiff’s counsel referred the Court to 49 CFR parts 214.301, .319 and .321.  The railroad countered that the violation was not negligence per se, but a violation of company rules.  The Trial Court ruled against the plaintiff and the jury apportioned the negligence at 50% to the employee and 50% to the railroad.  Plaintiff appealed.  The Montana Supreme Court ruled for the plaintiff in a 5 to 2 majority.  The majority found that under 45 CFR 53, no employee shall be held guilty of contributory negligence in any case where the violation by the railroad of any statute enacted for the safety of employees contributed to the injury or death of the employee.  The full amount of the verdict was awarded to the plaintiff.  Woods v. BNSF, Supreme Court of Montana, Case # 03-139.

Defendant’s surveillance tape admitted into evidence by plaintiff after defense does not use it – We at RCSI have addressed the pros and cons of surveillance in the past.  If you missed it, one of the articles can be found here http://www.railway-claim-services.com/1999%201st%20Quarter.htm .  This case is a prime example of the cons of surveillance.  The defense took surveillance tape of the plaintiff going through her daily routine.  The tape showed her using her walker to move around.  There was nothing damaging to the plaintiff on the tape.  During the discovery process, plaintiff obtained a copy of the tape and saw that there was nothing there.  During the course of the trial, the defense never introduced the surveillance tape.  Plaintiff therefore decided to introduce it into evidence.  Defense objected on the grounds that (1) it was not self-authenticating, (2) it was hearsay (3) it was not a business record (4) that prejudice outweighed the probative value (5) it was cumulative.  The Court ruled that the tape was authentic, relevant and material to the issue of damages.  After viewing the tape, the jury awarded $242,000 to the plaintiff.  The Trial Court denied the railroad’s motion for post-trial relief stating that the railroad had chosen to take the surveillance tape and was therefore hoisted by its own petard.  We at RCSI feel that surveillance is a lot like a hand grenade.  You need to know what the Hell you are going to do before you ever pull the pin.  I will omit the reference to this case, but please be aware of the dangers of unscripted surveillance.

Ayers upheld by the Ohio Court of Appeals – A Norfolk Southern employee filed suit against the NS for asbestosis.  At the conclusion of the trial, the jury awarded him $64,000.  The Trial Court reduced this award by one-third because the employee had been exposed to asbestos in other employment.  Following the ruling in the Ayers case [ Norfolk and Western Railway Company v. Ayers, 538 US 135 (2003)], the Trial Court reinstated the full amount of the award.  The railroad appealed.  The Ohio Appeals Court upheld the reinstatement of the full jury award saying, “Under the FELA, an employee who suffers an injury caused in whole or in part by a railroad’s negligence may recover his or her full damages from the railroad, regardless of whether the injury was also causes in part by the actions of a third party”.  Seaford v. Norfolk Southern Railroad Co., Court of Appeals of Ohio , Eighth District, Case # 83137.

RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner or Randal Little at (731) 967-1796 or FAX your message to (731) 967-1788.

Editor’s Note:      If you can receive future editions via email, please let us know so we can include you on our email distribution list.  Email distribution is quicker and saves postage and handling.  

Visit the Railway Claim Services, Inc. webpage located at www.railway-claim-services.com.  Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between.  If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

For further information contact:  

dave_gardner@railway-claim-services.com or randal_little@railway-claim-services.com

Corporate Offices at:   52 South Main Street     Lexington , Tennessee   38351

Phone:  800-786-5204, Fax:  731-967-1788 or visit us on the Web at www.railway-claim-services.com

Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES.