Railroad Defense Definitions of
Extra-Hazardous Grade Crossings
/ A Rebuttal
John C. Glennon, D. Engr., P.E.
January 2003 (copyright)
Railroads being profit-motivated entities have a desire and vested interest in having safe railroad-highway grade crossings without any cost to them. As a result, for several years, the railroads as defendants have presented two long-standing arguments in court cases involving their liability in railroad-highway grade crossing accidents. The first of these arguments is that the driver has the sole responsibility for safety at railroad-highway grade crossings. And, the second of these is the pre-emption argument, where the railroads have had some noteworthy success with recent U.S. Supreme Court rulings.
The pre-emption argument states that because the federal government provides funds for safety improvements at grade crossings (primarily active traffic controls), this funding action pre-empts the railroad's common law responsibility for grade crossing safety. Although, I don't agree with this hopeful abdication, I do understand the railroad industry's reasons for trying. A more useful endeavor, surely, would be to more thoroughly explore a joint public-private cooperation, recommended by the 1988 Manual on Uniform Traffic Control Devices (MUTCD), Part 8A-11, in supplying safe grade crossings at reasonable cost to both.
Arguments by railroad defense interests present a very narrow definition of extra-hazardous railroad-highway grade crossings. These arguements strictly interpret the Uniform Motor Vehicle Code (UMVC)2 to say that most all of the responsibility for the safety at railroad-highway grade crossings rests with the motor-vehicle drivers using the roadway. Secondarily, they add some additional unspecified responsibility for highway agencies but no responsibility whatsoever for the railroads. This interpretation is not only unrealistic and is not only contrary to common law requirements for railroads, but also is contrary to the limitations of human behavior. To put the majority of the burden on drivers for the safe operation at highly sight-restricted, poorly-designed grade crossings is to promote rather than to remedy extra-hazardous conditions. My rebuttal presented here, in contrast to these defense arguements, analyzes the definition of extra-hazardous not only with less rigid constraint but also from a safety-advocate perspective.
The two sections of the UMVC used to support railroad interests are as follows:
ARTICLE VIII - SPEED RESTRICTIONS
11-801 - Basic rule. No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions, including actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching the crest of a hill, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.The railroad defense interpretations of these provisions applied to highly sight-restricted grade crossings are: (1) that the sight distance should tell each driver what is the safe approach speed rather than having the roadway operating speed being used to design a safe sight triangle; and (2) that where the approach sight distance is restricted, all drivers should be required to stop. Because these options are not totally consistent with the UMVC or with common law and are both unrealistic and unsafe at grade crossings with crossbucks only, the only logical alternative to providing safe sight triangles in this line of reasoning is to place stop signs at every one of these crossings.
In attempting to set boundaries on their definition, the railroads say a grade crossing with signal lights and gates cannot be extra-hazardous. Most experts would tend to agree with this boundary with exceptions made for situations such as malfunctioning signals, poorly-aimed signals, sight-restricted signals, signals too close to a parallel roadway, etc.
A next step in this defense reasoning is to say that crossings with signals only (no gates) also cannot be extra-hazardous. Most experts again would generally agree but with exceptions made as noted above and for other conditions such as multi-tracked high-volume crossings where a clearing train can hide an opposite-direction train.
The more demanding definition for extra hazardous relates to passively-controlled (crossbuck only) grade crossings. Conditions that can contribute to creating an extra-hazardous passive grade crossing include, but are not limited to:
Passive grade crossings with both high-speed trains and high-speed motor vehicles by their very nature are hazardous because one of the two potentially conflicting vehicles is operating on a fixed rail with little or no ability for accident avoidance. At crossings with no more positive guidance than a crossbuck marker, the entire burden is placed on the motor-vehicle driver to: (1) perceive any conflicts while scanning both track approaches and the roadway ahead; (2) judge the speed of closure of both the train and his own vehicle to the crossing, and (3) decide on the safest course to either attempt a stop or proceed across the crossing. This task becomes extra-hazardous when the available sight distance is so restricted that the driver is able to pass beyond the point that defines his safe stopping distance to the grade crossing without being able to see a nearby train.
The literature on human factors is replete with discussion of how drivers are poor judges of these perception-judgement-decision tasks. Therefore, to say that very restrictive sight obstructions, sharp-angled crossings, steep approach grades, poorly-aimed signals, and close-by roadway intersections do not make a grade crossing extra-hazardous is a disservice to the safety of the motoring public. The well-known document Positive Guidance in Traffic Control7 contradicts the defense arguement of depending on the driver's ability to judge the presence, speed, and distance of trains at railroad-highway grade crossings. This discussion is as follows:
Successful performance at the guidance level requires selection of a speed and path to negotiate a hazardous location safely and efficiently. Hazards are objects, conditions, or situations, which produce accidents when the driver fails to perform successfully. Object hazards are of two types, fixed and moving. Of the two, fixed objects are generally easier for the driver to assess as hazardous and to avoid. The condition of the highway, its design features, and its state of maintenance all may contribute to a highway condition hazard. Also included are geometric characteristics such as lane drops, tangential off-ramps, inadequate superelevation, etc. This type of hazard is generally more difficult to recognize and more complex to deal with. The most complex and difficult hazards to recognize and deal with are situation hazards. These are essentially combinations of conditions with or without object hazards. Often, a situation hazard may consist of elements which are not themselves, hazardous, but when combined (e.g., inadequate superelevation, rain, bald tires) lead to accidents.
In summary, using the UMVC to argue that drivers assume all of the resposibility for safety at railroad-highway gade crossings is a veiled attempt to discredit the application of the FHWA/AASHTO3,5,6 recommendations for safe approach sight triangles at railroad-highway grade crossings as benchmarks for judging whether a crossing is extra-hazardous. These sight triangle recommendations, based on sound engineering principles, recognize that drivers are not perfect and have limitations in detecting oncoming trains when those trains cannot be seen until the driver is too close to the crossing to avoid collision. These recommendations should be used as benchmarks for deciding on remedial measures at sight-restricted passively-controlled crossings such as cutting brush, removing other obstacles, and/or providing more positive guidance to the driver. To suggest inaction as an alternative cannot ever serve in the interest of safety at railroad-highway grade crossings.
1. Federal Highway Administration, Manual on Uniform Traffic Control Devices, 1988, 2001, 2003.
2. National Committee on Uniform Traffic Laws and Ordinances, Uniform Motor Vehicle Code, 2000.
3. American Association of State Highway and Transportation Officials, A Policy on Geometric Design of Streets and Highways, 1984, 1990, 1994, 2001.
4. American Railroad Engineering Association, Manual for Railway Engineering,1990.
5. Federal Highway Administration, Railroad-Highway Grade Crossing Handbook,1986.
6. Federal Highway Administration, Traffic Control Devices Handbook, 1983.
7. Alexander, Gerson J. and Harold Lunenfeld, Positive Guidance in Traffic Control, Federal Highway Administration, 1975.
8. Glennon,John C., Roadway Safety and Tort Liability, Lawyers and Judges Publishing Co.,2004.
9. Loumiet, James R. and William Jungbauer, Train Accident Reconstruction and FELA and Railroad Litigation, Lawyers and Judges Publishing Co., 1998
10. Glennon, John C. and James R.Loumiet, Low-Cost Safety Improvements at Railroad-Highway Crossings, Proceeding of the 1992 International Symposium on Railroad-Highway Grade Crossing Research and Safety,1992.
About the Author
Dr. John C. Glennon is a traffic engineer with over 45 years experience. He has over 120 publications. He is the author of the book "Roadway Safety and Tort Liability" and is frequently called to testify both about roadway defects and as a crash reconstructionist.
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