I was a passenger in a vehicle that was struck by a railroad at a crossing. What claims do I have?
You did not give specifics about the accident, but you probably have claims against the driver of your vehicle as well as the railroad.
First, railroads have the right of way at crossings. Hicks v Erie R. Co., 10 AD2d 795, 197 NYS2d 803 (4th Dept 1960). Railroads are large and not easily started or stopped. So the law favors their right of way at crossings. However, given the circumstances of the crossing, the railroad engineer and company may have obligations to drivers.
Signs
For example, in smaller towns and in many larger populated communities, signs must be posted notifying drivers of a railroad crossing. (In New York City, the Commissioner of Transportation may waive the necessity of a sign.) Railroad Law section 53.
Railroad Horn
Similarly, in smaller communities, the engineer must sound a whistle or horn 80 rods (about 1,300 feet) before a railroad crossing. But in New York City this rule does not apply. Railroad Law section 53-b.
Nevertheless, engineers must consider the terrain, visibility of the tracks from the street, train speed, weather, and any obstructions when entering railroad crossings. Thus, the engineer possibly should have sounded a horn or whistle, or slowed down before entering the railroad crossing.
You will probably have to hire an expert to testify about the standard of care for an engineer at the specific crossing. Unlike driving a car, most people have no experience as a railroad engineer. Thus, in order to intelligently argue to a jury that the engineer’s action were negligent, you will have to hire a safety expert familiar with rail operations who can testify about the standard of care for this particular railroad at this particular crossing.
So the car driver will probably be found partially responsible for the accident. Depending on other circumstances, the engineer may be liable as well.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.