Pedestrian / Train Accidents (Trespassing)

Unsafe railroad crossings present a serious danger to pedestrians much as they do to vehicles.  Though the danger of an unguarded, poorly maintained railroad crossing receives some public attention, railroads have, by and large, succeeded in maintaining the impression that any instance of a pedestrian hit on railroad tracks is a case of careless trespassing or suicide.  Though these two issues certainly are very real and cost many lives each year, many pedestrian accidents do not fall into one of these categories.

While railroads have attempted to enforce the notion that no pedestrian should ever be found near railroad tracks, they often somehow neglect to take into account the obvious fact that not everyone owns a car.  In short, their policies often fail to take into consideration the poor who cannot afford vehicles but live near tracks, the young who cannot drive a vehicle, the elderly, and the disabled. This obvious blind spot nevertheless is very much operative in the thinking of railroad companies.

Why Pedestrian Train Accidents Happen

When people think of pedestrian-train accidents, they generally assume that someone decided to step in front of a train in order to end their own life. No doubt that reason accounts for some of the people who are killed each year in these accidents, but it doesn’t tell the complete story.

The Federal Railroad Administration (FRA) tends to call these “trespassing events.” Their approach is to discourage individuals from “trespassing” on railroads—not to increase the safety of crossing railroads. Nonetheless, this sort of “trespassing” is responsible for more railroad-related deaths than the combined total of derailments and other train accidents. The FRA’s response has been to start a campaign educating folks on the perils of trespassing on railroad tracks and the proper way to cross. They have also ramped up efforts to criminalize this trespassing and enforce laws related to it.

Who is Responsible When a Pedestrian is Killed or Injured by a Train?

There are a number of theories out there on why one entity should bear the blame of the responsibility for another. Institutions like the FRA, who are influenced by corporate lobbyists, want to lay the blame at the feet of the pedestrian. Indeed, there is some cause to say that the pedestrian bears some of the blame when they are struck by a train. In fact, this all boils down to premises liability.

The Attractive Nuisance Doctrine

Let’s say your neighbor leaves an unfenced pool on their property and one of your children wander into it. The potential for them to drown is quite high. Under the theory of attractive nuisance doctrine, the homeowner is responsible for the accident because they did not adequately fence off the area and should have assumed that local children might be attracted to it.

This happens in industrial and urban neighborhoods with trains. Often, train tracks provide a shortcut between a child’s school and a child’s home. It may become a place where older kids hang out because it’s out of the way of prying eyes.
Can the attractive nuisance doctrine be applied to railroad companies when people are injured?

Indeed. Railroad companies have an obligation to block access to especially dangerous parts of the railroad track. That requirement is redoubled when schoolchildren can potentially access that section of the railroad on their way home from school. 

Under the attractive nuisance doctrine, it may be possible to hold the railroad responsible for not adequately securing the area around the tracks.