Railroad Crossing Collision Claims

This page is for people hit by a train, not for railroad employees. If you work for the railroad, your claim arises under FELA and the main railroad page covers it. A motorist, passenger, pedestrian or family bringing a crossing case is in a different posture entirely, governed by ordinary negligence law — except where federal law has taken certain arguments away.

Understanding which arguments survive is the whole game in these cases, and it is where most of them are lost before they are properly investigated. I have handled a crossing case, and the theories that carried it are the ones set out below.

Why "The Crossing Had No Gates" May Not Be the Case You Think

The instinct after a crossing collision is to say the crossing should have had gates and lights, or better ones. That is often true as a matter of common sense. As a matter of law it is frequently unavailable, and a family that builds its case on that theory alone can lose without ever reaching a jury.

Two Supreme Court decisions set the boundary.

In CSX Transportation, Inc. v. Easterwood (1993), the Court held that where federal regulations establish requirements as to the installation of particular warning devices, state tort law claims about the adequacy of those devices are preempted when the regulations are applicable.

In Norfolk Southern Railway Co. v. Shanklin (2000), the Court went further and made the trigger concrete: once federal funds have participated in the installation of the warning devices at a crossing and those devices have been installed, state-law claims that the warnings were inadequate are preempted. In Shanklin the state DOT had installed crossbucks using federal funds under the crossings program; that was enough.

The practical effect is counterintuitive and worth stating bluntly: federal money spent improving a crossing can insulate the railroad from a claim that the crossing was under-protected. A great many rural Nebraska crossings received federally funded devices at some point in the last several decades.

So the first investigative question in any crossing case is not “were the warnings adequate” but “what was installed, when, and with whose money” — which is established through state DOT and railroad records, not assumptions.

What Preemption Does Not Touch

Here is the part that matters, and the reason these cases remain very much worth bringing. Preemption is narrow. It reaches the adequacy of federally funded warning devices and, separately, train speed within federal limits. It does not reach everything else.

Vegetation and obstructed sight lines

This is frequently the strongest theory available, and it turns on a limit in the regulation itself.

49 CFR § 213.37 governs vegetation on and immediately adjacent to the roadbed. The Secretary has not regulated vegetation beyond that zone. The consequence is direct: state-law claims about brush, trees and growth outside the immediately-adjacent area are not preempted, because there is no federal standard occupying that ground.

In practice, the growth that actually destroys a driver’s sight triangle at a rural crossing is rarely the strip beside the rail. It is the brush and tree line along the right of way on the approach — exactly the area federal regulation leaves alone. A railroad that let its right of way grow over until a driver could not see an approaching train until it was too late has a maintenance problem that state law is free to address.

This evidence is perishable in a specific and urgent way: railroads cut brush. Vegetation conditions can change within weeks of a collision, sometimes within days. Photographs, video, aerial and satellite imagery from before the crash, and a prompt site inspection are the difference between proving the sight line was obstructed and arguing about it.

Defective crossing design

How a crossing is laid out is distinct from what warning devices sit on it. Design questions include the angle at which the road meets the track — a sharp skew forces a driver to turn much further to see — the profile and hump of the crossing surface, approach grades, the stopping distance available, sight distance in relation to permitted train and vehicle speeds, and whether nearby structures, signals or stopped equipment create a trap.

These are engineering claims, proven with a reconstruction and a crossing-design expert working from the actual geometry, and they are not disposed of by the fact that a crossbuck was federally funded.

Specific individual hazards

Easterwood preempted claims that a train was traveling at an excessive speed where it was within federal limits. But the Court expressly declined to decide whether federal law preempts a claim based on the duty to slow or stop a train to avoid a specific, individual hazard. That opening matters where a particular crossing presented a known and localized danger — an obstruction, a stalled vehicle, a recurring condition the crew was aware of.

And the rest

• Failure to sound the horn or bell as required on approach.
• Failure to keep a proper lookout by the crew.
• Malfunctioning devices. Preemption addresses whether the warnings installed were adequate. It does not license a railroad to let them fail. Activation records, signal maintenance logs and prior-malfunction reports are central.
• Crossing surface condition — rough or broken surfaces that stall or slow vehicles on the tracks.
• Blocked crossings and standing equipment that obscures approach views or induces drivers around it.

Private and farm crossings

A great deal of rural Nebraska track is crossed by private and farm crossings rather than public roads. These sit outside much of the framework described above: the federal crossings program funds devices at public crossings, so the Shanklin preemption trigger frequently does not apply at all. Duties at a private crossing are commonly shaped by the agreement or easement establishing it, by long-standing use, and by ordinary negligence principles. If a farmer, hired hand or family member was struck at a crossing serving a field or a residence, do not assume the analysis matches a public-road case — it often does not, and the claim may be broader.

The Evidence That Decides These Cases — and How Fast It Goes

Crossing cases are won on physical and electronic evidence gathered early. Very little of it waits.

1. Locomotive event recorder data — speed, throttle, brake application, and the horn and bell soundings, second by second. This is the single most important record in most crossing cases and it is subject to overwrite and retention limits.
2. Forward-facing and inward-facing camera video, where equipped.
3. Signal and crossing activation records showing whether the warning system operated and when it began.
4. Maintenance and inspection history for the signals, the surface and the right of way — including the vegetation control records.
5. Prior incident history at the same crossing. A pattern of near-misses or collisions goes directly to notice.
6. Scene documentation before it changes — sight lines, vegetation, sign placement, approach grade, skew angle, all measured rather than described.
7. State DOT and federal funding records establishing what devices were installed, when and with what money — which determines the preemption landscape.

A preservation demand needs to reach the railroad immediately. Railroads are sophisticated litigants with rapid-response procedures; investigators are frequently on scene within hours while the family is still at the hospital. The imbalance in these cases is not close, and it is at its worst in the first week.

Quiet Zones Change the Horn Analysis

“The train never blew its horn” is one of the most common things families say after a crossing collision. Before that becomes a theory of the case, one thing has to be checked: whether the crossing sits inside a quiet zone.

Locomotive horn use at public highway-rail grade crossings is governed by the FRA’s train horn rule at 49 CFR Part 222. A quiet zone is a designated stretch of rail line where locomotives are not required to routinely sound the horn at grade crossings. Several Nebraska and Iowa communities have established them.

That does not end the inquiry — it redirects it. A quiet zone is not simply permission to go quiet. The public authority that establishes one must offset the lost warning with supplementary or alternative safety measures, each carrying an assigned effectiveness rating, sufficient to bring the crossing’s risk index down to the required threshold, with FRA approval to continue. Approved measures include enhanced active warning devices, wayside horns, and in partial quiet zones, temporary closure of a crossing during designated quiet periods.

So in a quiet zone crossing case the questions become: were the required supplementary measures actually installed, were they functioning on the day, and did the authority maintain the risk profile the quiet zone was approved on? A wayside horn that was out of service, or an enhanced device that failed, is a live claim — and it may point at the public authority as much as the railroad.

Note too that a quiet zone suspends only routine horn sounding. It does not displace an engineer’s judgment when confronted with a hazard on or near the track.

The Railroad Is Rarely the Only Defendant

Crossing cases are frequently treated as a motorist against a railroad. That framing leaves parties — and insurance — on the table.

• The road authority. A crossing has a highway side and a railroad side. The city, county or state responsible for the roadway approach may bear responsibility for approach grade, pavement markings, advance warning signs, stopping sight distance and the geometry of the intersection with the track.
• The public authority that established a quiet zone, where required supplementary measures were absent or unmaintained.
• Signal maintenance and construction contractors, where the warning system was serviced or installed by an outside firm.
• Vegetation-control contractors, where right-of-way clearing was outsourced — which is common.
• The owner of adjoining land, where the sight obstruction grew on private property rather than the right of way.

One warning that has ended otherwise strong cases. If a city, county or the State is a potential defendant, the claim does not run on the ordinary four-year Nebraska negligence period. Claims against political subdivisions and against the State proceed under separate tort claims procedures with their own written-notice requirements and far shorter windows. A family that spends a year investigating the railroad and only then realizes the county maintained the approach can find the road-authority claim already extinguished.

That determination has to be made in the first weeks, not after the railroad’s liability picture clarifies.

Comparative Fault and the "He Drove Around the Gates" Defense

Expect the railroad to argue the driver is entirely responsible. In some cases that is true. In many it is an oversimplification that a proper investigation dismantles.

Nebraska applies modified comparative negligence: a plaintiff’s recovery is reduced by their share of fault and barred at 50 percent. Iowa works similarly. So the fault allocation is not a side issue — it is frequently the whole case, and every percentage point the carrier can attach to the driver is money.

What tends to shift that allocation is evidence about what the driver could actually perceive. If the sight triangle was obstructed by growth the railroad was responsible for maintaining, a driver who “should have seen the train” may have had no realistic opportunity to. If the crossing was skewed so that seeing down the track required turning almost backward, that is a design condition, not inattention. If the warning system had a documented history of activating late or not at all, a driver’s reliance on silent signals is reasonable rather than reckless.

In a fatal case, be aware that the only surviving account of what happened frequently comes from the train crew. That is another reason independent physical evidence, gathered promptly, matters so much.

Nebraska Crossings

Nebraska is crossed by two of the busiest freight corridors in the country. Union Pacific is headquartered in Omaha and operates Bailey Yard at North Platte; BNSF runs Powder River Basin coal traffic through Alliance and across the Panhandle. The state has a very large number of at-grade crossings, many of them rural, many with passive warning devices only, and many on gravel roads where sight lines depend entirely on how the right of way has been maintained.

That is the setting in which vegetation and design claims live. I handle these cases across Nebraska and Iowa — including North Platte, Alliance, Columbus and Norfolk, all of which sit on active rail.

If your family has been through a crossing collision, the most useful thing you can do this week is make sure nobody cuts the brush before it has been photographed and measured.

Frequently Asked Questions

The crossing only had a crossbuck and no gates. Can I sue over that?

Possibly not, and that surprises people. Under Norfolk Southern v. Shanklin, once federal funds participated in installing the warning devices and they were installed, state-law claims that the warnings were inadequate are preempted. The first step is establishing what was installed, when, and with whose money — not assuming.

Brush blocked my view of the train. Is that claim preempted too?

Generally no, and it is often the strongest theory available. 49 CFR § 213.37 regulates vegetation on and immediately adjacent to the roadbed; the Secretary has not regulated vegetation beyond that zone, so state-law claims about brush and trees along the approach are not displaced.

How fast does the vegetation evidence disappear?

Very fast. Railroads cut brush, sometimes within days of a collision. Photographs, video, pre-crash aerial imagery and a prompt site inspection are what turn an obstructed-sight-line claim into a provable one.

Can I claim the train was going too fast?

Not if it was within federal speed limits — CSX v. Easterwood preempts general excessive-speed claims. But the Court expressly left open whether a duty to slow or stop for a specific, individual hazard is preempted, which can matter where a particular known danger existed at that crossing.

What is a defective crossing design claim?

It addresses the crossing itself rather than its warning devices: the skew angle where the road meets the track, the surface profile and hump, approach grades, available stopping and sight distance, and whether structures or standing equipment create a trap. Federal funding of a crossbuck does not dispose of it.

The railroad says my family member drove around the gates.

Expect that argument. Nebraska reduces recovery by the plaintiff’s share of fault and bars it at 50 percent, so allocation is often the whole case. Evidence about what a driver could actually perceive — obstructed sight lines, skewed geometry, a signal with a history of late activation — is what moves it.

What is the single most important record?

The locomotive event recorder — speed, throttle, braking, and horn and bell soundings, second by second. It is subject to retention limits and overwrite, so a preservation demand should reach the railroad immediately.

Does this page apply if I work for the railroad?

No. Railroad employees injured on duty are covered by FELA, which is a different claim with different standards and a three-year deadline. This page is for motorists, passengers, pedestrians and their families.