Needed Railroad Economic and Policy Decisions

The railroad industry in this country has chosen to ignore the following issues that can not be addressed without their participation:

  • Low cost [non-preempted] improvements at crossings. Bulldozers, mowers, chainsaws to provide adequate sight triangles instead of taking the position that these triangles are only a “recommended design standard.” Denial of the concept that sight triangles are important safety concerns is a huge issue.  Railroads want to confuse sight triangles with the other two sight distance requirements of:
  • View along the highway €“ to see the crossing ahead, and
  • View down the track from a stopping location €“ required for buses and hazardous materials vehicles.

Most states leave the view “along the highway” as the responsibility of the road authority because the right of way belongs to the road authority and the road authority is the one must maintain their own right of way.  Likewise, the view down the track is usually the responsibility of the railroad because it is the railroad’s right of way. Sight triangles are a shared responsibility totally ignored [and regularly misreported] by the railroads. All three sight distances are contained in the “Railroad-Highway Grade Crossing Handbook” and need to be addressed. The 1998 NTSB study of passive crossing accidents shows that a vast majority of the accidents at passive crossings are at crossings with inadequate sight distances. There are some very simple things that a railroad could do to work with road authorities to address sight triangle issues.

  • Railroads could make contact with the local road authorities. Without contact how do you talk about safety? Almost every case has evidence of no contact, no willingness to work with road authorities, or outright animosity with the local road authorities.
  • Once contact is made there needs to be a railroad effort to determine the level of expertise that the road authority possesses. Rural crossings are typically under the jurisdiction of untrained personnel. Rather than taking advantage of their superior knowledge and strength, the railroads need to offer assistance and guidance.
  • Concerning sight triangles: railroads could assist in marking them!  A simple paint mark on the rail where the track inspector’s high-rail vehicle should be able to stop and see the advance warning sign.
  • Reporting deficiencies would be the next step. This is where we have recently uncovered the fraud in railroad accident reporting data.
  • Instead of taking this approach the railroads refuse to acknowledge sight triangle requirements. [with the exception of my deposition of Richard Reynolds €“ who is now back tracking from his testimony]  To perpetuate their position they avoid hiring traffic engineers and rely on “outside experts” to deny the importance of sight triangles. These experts ignore universally accepted sight distance requirements and offer no alternative theory on what sight triangles should be required.
  • Railroads need to establish an adequate research and development budget for crossing safety issues.  The railroads have elected to use their trade association, the AAR, as their conduit to promote research and development. However, the AAR does not proactively address crossing safety issues.  We may need to join the AAR as a defendant in future cases for its failure to proactively participate in crossing protection research and development.  There are now two case where a trade association has been successfully sued for negligently setting industry standards. At this point the industry standard appears to be OLI.  We need to explore this theory and do discover on the issue with in the AAR.
  • Railroads should work to maximize the safety impact of Federal funding but they don’t. Their efforts actually dilute the effectiveness of this program. Our analysis must begin with revealing the profiteering of Class 1 railroads that use these safety funds to supplement maintenance budget. We need to stress why maintenance is such a big issue to the railroads.  You have already shown how that budget has been slashed by the railroads. Hand in hand would be the efforts to use other people’s money to finance your own maintenance duties.
  • We need to point out how the close-minded approach railroads take on crossing safety issues prevents them considering the economic benefits of cooperation with versus obstruction of upgrading programs. We must contrast the things that the railroads could do to assist the states in effective use of Federal funds, as compared with their current practices. Contrast their chosen safety program [OLI] with the truth!  What could we expect if OLI changed its message to promote intense research and development, the installation of low cost active warning devices [like in Australia] and uniformity that would not violate driver expectancies?  There could be a training program that teaches employees about crossing hazards, drivers’ expectancies and railroad responsibilities.  Safety initiatives could reward rather than punish employees for reporting unsafe conditions.
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Train crash cases are unique and complex with many different potential pitfalls, such as federal preemption. Anytime I get hired or even get a call from a train crash victim, my very first call is to Nathan’s firm. Nathan’s knowledge and experience in handling and trying cases against these litigation savvy railroad companies gives me the confidence to know that the clients and cases I refer to him are getting the best of the best.

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I have had the opportunity to work as co-counsel with Nathan on several railroad crossing accidents cases. In each case, Nathan always possessed an incredible knowledge of the law and the facts, possessed a great talent for aggressive - strategic legal planning and trial tactics while, at the same time, displaying great skill as an effective negotiator. I would recommend him to anyone without hesitation.

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Nathan is a warrior fighting the railroads. As a fellow personal injury lawyer, I have constantly been impressed with his depth of knowledge and his capabilities from case to case. I’d take him into battle with me any day against the biggest railroads and insurance companies on the planet.

Jon C. ClarkAustin, Texas

Bob Pottroff has fought for the victims of the railroads’ callous disregard for safety more than any other attorney that I know. I should know because I am currently Chair-elect of the Railroad Section of ATLA.

Robert SchuetzeBoulder, Colorado

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Mike EasleyArkansas

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In addition to his substantive contributions to railroad grade crossing safety, I have personally observed his untiring efforts and contributions to improving the integrity of the legal system.

Elizabeth HardyLake Charles, Louisiana