Several of our readers have recently asked if there are special or different considerations which apply to situations involving contract or commercial carriers furnishing crew transportation as opposed to vehicles owned and operated by the railroad.
The short answer is that liability is the same. The contract or commercial carrier — let’s call it the Cab Company — is providing substituted service for the railroad. In other words, the railroad is hiring the Cab Company to do work which normally the railroad would do. That being the case, the Cab Company stands in the shoes of the railroad.
RAILROAD CAN NOT DELEGATE ITS RESPONSIBILITY
The railroad can contract out this work, but they can’t contract out the liability or the responsibility to provide its employees with a safe place to work. Regular readers of Straight Track have read many times the words, “a railroad cannot delegate its responsibility” to provide a safe place to work.
A railroader injured by the negligence of the Cab Company through its driver or maintenance department has a right to recover damages from the railroad under the FELA. If this happens, the railroad claim agent will usually say, “Handle your claim directly with the Cab Company’s insurance carrier, because the railroad has a contract with the Cab Company which requires the Cab Company to have a specified amount of insurance. They will take care of you.”
REPORT UNSAFE DRIVERS
Maybe, maybe not, and it may take forever. So to be on the safe side and to prevent the railroad from saying, "We didn’t know the Cab Company’s driver was practicing to race at the Brickyard 400," or "The cab wasn’t in showroom new condition," or other similar nonsense. Be wise and report unsafe drivers and conditions to the railroad just as you would any dangerous or unsafe conditions or practices on the railroad.
We are including with this week's Straight Track a form that was adapted from a State Motor Vehicle form for your use. It is simple and to the point. Print a copy and keep it with you for use anytime you encounter an unsafe or dangerous condition or driver. [Go to contract transportation complaint form] Fill it out and give one copy to the railroad and a copy to whoever in your union is responsible for making the railroad aware of cabs that are unsafe for any reason. It maybe your Legislative Representative or Local or General Chairman, but get it to someone whose responsibility it is to follow-up on safety concerns with the railroad.
By doing so you give the railroad the opportunity to get that cab out of service until the defect(s) are repaired or the inattentive or dangerous driver assigned somewhere else. You also put the railroad on notice so that if the mechanical defect or the driver causes injury to you or a fellow employee, the railroad can’t say, “Nobody told us.”
We’re sure you all know that if the cab driver is so impaired or the cab is unsafe to operate at all, you should refuse to get in the cab, or tell the driver to pull over so you can have the railroad send out another cab. Under no circumstances should a railroad worker offer to drive the cab to relieve a sleepy driver. Believe it! We know of instances where a well-meaning railroader has done that, much to his later regret. But that’s not the point of this article, just a reminder.
The point here is to give notice to the railroad on an appropriate form in a way that your complaint can be confirmed by a representative of your union. Simply telling the trainmaster or some other handy official that, “This cab is a piece of junk” or, ”My 12-year old kid drives better than that guy” is not enough. Put it in writing and make sure you give your union representative a copy.