Whenever a train and a motor vehicle collide at a grade crossing or a train strikes a pedestrian, the news media usually reports the story as though only the driver or pedestrian was injured.
Having been closely associated with rails for more than 35 years, I know this is not true. Just because the train crew was not transported from the scene in an ambulance doesn’t mean they weren’t hurt.
Even though the engineer knows the train could not have been stopped or slowed in time to avoid the collision, and the conductor knows that dumping the air from his side of the locomotive would not have done any good, both feel terrible about what happened. They can’t stop thinking about it. They can’t concentrate on their jobs; they grieve for the injured or deceased; and, there is the very human tendency to blame themselves in some vague sort of way. Upon occasion they become so emotionally upset that medical attention is sought and medication prescribed. The train crew often has lost wages from missing work.
Very few railroads will give the crew a couple of days off with pay to help them get over the emotional shock so that when they return to work they can concentrate on their jobs. Most railroads are not this compassionate and sometimes it is necessary to be off work for a longer period in order to regain emotional stability.
It is in these cases that the injured railroader usually calls the office with the question, “Am I entitled to anything?” As with most things involving your legal rights, there is no simple yes or no answer. The attorney usually responds, “It depends.”
Recovery for emotional injuries under the FELA - Federal Employers' Liability Act depends whether the railroad was in any way negligent in causing the collision, and whether or not that negligence played any part in causing the emotional injury. If there is no railroad negligence, there is no right to recover damages under the FELA.
The question of whether there is a right to recover damages from the motorist is a matter of state law which varies somewhat from state to state and is not the subject of this article. The topic here is only whether you can recover from the railroad under the FELA for emotional injuries.
First, we must determine the railroad's negligence. If the flashers or gates malfunctioned, or were improperly designed or programmed for train operation over that particular crossing, there is railroad negligence. The more common occurrence, however, is the collision at a crossing with only passive protection, i.e., crossbucks. Some possible areas to look for railroad negligence include failure of the railroad to clear brush, trees, and other obstructions to the view of an approaching motorist, in compliance with state laws and regulations, air brake or other mechanical malfunction which affected the train’s response to the engineer’s commands, and occasionally the action or inaction of one of the crew members.
For example, if the engineer is speeding, doesn’t blow the whistle or fails to apply the brakes, that would be railroad negligence to support a conductor’s claim for damages for emotional distress. But it would not support such a claim by the engineer because his negligence might be the sole cause of the collision, thereby barring his recovery of damages.
Unfortunately for the emotionally distraught railroader, it’s usually not the crew or the railroad that was negligent. In many cases, it was the motorist or the pedestrian who was completely at fault. If that’s the case, the only claim possible would be one brought pursuant to state law against the negligent party.
PHYSICAL AND EMOTIONAL INJURY
But that’s not the whole story. There are several other considerations which must be met before there can be recovery against the negligent railroad for emotional trauma. If the railroader sustains some physical injury in the collision, the law allows for recovery not only for the physical injury but for the emotional one as well. The other condition that may apply is one where you have no physical injury but were in what the courts have called “the zone of danger.” Accordingly, even if you didn’t have any bodily injury, if you reasonably believed that your life was in danger or that you were at risk of serious bodily injury, you may be able to recover for the emotional harm that you sustained.
An example might better illustrate this point. Say that you are the engineer of a train passing another train which is approaching on the track to your left, or conductor’s side of the locomotive. All of sudden you see a bundle of lumber protruding from one of the approaching cars. There’s no way to stop and you both know you’re going to hit it. You’re afraid it might derail your train. The conductor dives to the floor and you duck behind the control stand. You strike the lumber which enters your cab on the conductor’s side, but you don’t derail. The conductor has a sprained wrist and numerous cuts and bruises, but you escape without a scratch. Even though you thought you were going to die, you didn’t, but you’re an emotional wreck. You can’t sleep, because when you do, you dream that it’s happening all over again. You’re tired, you’re irritable, you fight with your spouse and kids, you can’t even think about going near a locomotive without breaking into a sweat. You become depressed because you can see what’s happening and you can’t do anything about it. You see a psychiatrist for care and treatment. You have a claim for damages because you were in “the zone of danger” and reasonably believed you were going to be killed or sustain serious injury.
The conductor also has a claim for the same reasons, and also because he sustained bodily injury. Just as you would get medical treatment for a broken arm or a sprained back it is most important that you get prompt treatment for your emotional or mental injuries. Just as the bone doctor must causally relate a physical injury to your railroad accident, the psychiatrist or psychologist must do the same with your emotional injury.
EVERY CASE IS DIFFERENT
In our experiences, we find every case is different because the facts are different. So, the important thing to remember is that if you suffer an emotional injury due to a grade-crossing collision or some other on-the-job occurrence, you should get legal advice immediately. You don’t have to make a medical/legal decision without help. Call Hoey & Farina. You may not need or want to retain an attorney at the time, but you do need legal advice.