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What to do to recover financial compensation if you were injured
Around 11 a.m. on December 15, 2021, 2 dump trucks, an empty logging truck, a box truck and other vehicles were traveling through Pound, Wisconsin, on Highway 141. Foggy weather left the drivers with low visibility, and a chain reaction of vehicle crashes resulted in the box truck sliding under a train, pushing the train off the tracks and killing the driver of the truck.
Exactly one month later, on January 15, 2022, a call came into the Waukesha Dispatch Center that a pedestrian had been hit by a train. The person had been walking on the tracks at Moreland Boulevard around 11 a.m. when he was hit, and he was deceased when the emergency responders arrived on the scene.
Shortly after that, in early February, Waukesha police responded to another call related to a crash between a vehicle and a train. Fortunately, this accident didn’t result in injuries because the driver left the car before it was hit. The driver turned onto the tracks near Let’s Roll Tobacco and Pleasant Street, mistakenly believing it was a road. He drove about 75 yards on the track before becoming stuck. He left the car, and it was subsequently hit by the train.
A few months earlier, in October 2021, a pedestrian was killed by a train in Washington County. He had been walking on the tracks east of Scenic Drive between Lakeview Road and Willow Creek Road in the Village of Richfield. The train was traveling southbound, and the engineer saw the pedestrian. He sounded the horn and deployed emergency braking procedures, but the person remained on the tracks in the path of the train, and it could not stop quickly enough to prevent the man from being hit. The train was finally able to come to a complete stop about a mile past the location where it struck the man.
These accidents that resulted in deaths are tragic, and they underscore an important fact: None of these recent deaths related to train accidents involved train passengers.
Therefore, train travel remains very safe, though the occasional accident will happen.
- Pedestrian hit by a train. The majority of train-related fatalities involve a person being killed as they walk along or cross a train track in the path of an oncoming train.
- Train crashes with cars. It’s never a good idea for a driver to try to “beat” a train across the tracks. Crashes happen when drivers underestimate the speed of an oncoming train (even when signals are flashing) or stop on the tracks while waiting for a traffic light to change or in a line of traffic.
- Train collisions. Trains that collide with each other are rare, but when it does happen, it can have catastrophic consequences because of the sheer speed, velocity and size of each locomotive.
- Derailments. A derailment happens when a train comes off the tracks. When 1 train car pulls others off the track, it could affect the entire train. A train derailment could harm railroad workers, passengers and even occupants of nearby buildings or pedestrians.
We’ll take a look at each of these types of Wisconsin train accident scenarios and how or whether you might be able to recover damages if you’ve been injured.
Wisconsin train travel
Wisconsin is served by Amtrak trains, which has one National Network train that travels through the state. The Empire Builder line travels daily to Chicago-Milwaukee-St.Paul-Seattle/Portland via Columbus, Portage, Wisconsin Dells, Tomah, and La Crosse. The state-supported Amtrak route is the Hiawatha Service, which makes round-trips daily between Milwaukee and Chicago.
In 2019, there were nearly 1 million boardings and alightings in Wisconsin.
Here’s how the Wisconsin Amtrak train stations stack up by number of passengers:
|Station||Number of boardings & alightings in 2019|
Wisconsin also has a commuter rail, Metra, which serves the Northeast Illinois Regional Commuter Railroad Corporation for Chicago and surrounding areas, including parts of Wisconsin.
There are also several tourism-based railroads in Wisconsin, which are for recreational travel and sightseeing.
Finally, there are 12 organizations in Wisconsin that have common carrier rail freight certificates. Most of the railroads used for freight are privately owned and operated.
The organizations that use the Wisconsin freight rail system are:
- Burlington Northern Santa Fe
- Canadian National
- Canadian Pacific
- East Troy Electric Railroad
- Escanaba & Lake Superior Railroad
- Fox Valley & Lake Superior Railroad
- Rail Transload, Inc.
- Tomahawk Railway
- Union Pacific
- Wisconsin and Southern
- Wisconsin Great Northern
- Wisconsin Northern Railroad
Common causes of train accidents
1. Human error. This could happen in any number of ways. Accidents can be caused by a passenger who doesn’t properly stow an item in an overhead bin or leaves luggage in the aisle, causing someone else to trip and fall. Accidents could also be caused by a pedestrian or driver on the tracks—in other words, “human error” doesn’t always refer to the train operator.
2. Equipment failure or defects. Trains are massive machines made up of many parts. While it’s the train operator’s job to keep a train properly maintained, and regulators are always checking to be sure this is happening, sometimes parts fail. If it’s something like brakes or a speed-control mechanism, it can lead to disaster.
The other object that has parts that could fail is railroad crossing warnings. Even though a train could be functioning optimally, if a railroad crossing warning device fails and a driver isn’t properly warned of a train approaching, it could lead to a serious accident.
3. Heavy or shifting cargo loads. Usually, heavy loads are on freight trains, not passenger trains. Train travel is an efficient and fast way to transport heavy, sometimes hazardous, materials from different parts of the country. But if a load isn’t weighted properly, it can increase the risk of a train derailing or tipping on the tracks.
4. Signal or crossing failure. This applies to warnings to drivers—but also to train operators with other trains. The engineer relies on signal crossings, too, because a train is usually not the only one using the track at a time.
5. Track failure. Track failure could be caused by poor maintenance, weather conditions or other reasons.
6. Obstacles on train tracks. An obstacle could be a vehicle, an abandoned bicycle, debris from a storm (like tree branches) or other natural objects, or even a person.
Liability for a Wisconsin train accident
Any transportation company that carries people or property from one location to another is called a common carrier. That means railroads like Amtrak and Metra are both common carriers, and they have a duty of care to keep passengers safe.
Railroad company’s responsibility to passengers
The railroad has a responsibility to:
1. Ensure that the train and tracks are maintained properly
2. Ensure that employees, like conductors and engineers, have the proper training and experience to manage a train and its passengers
The train operator works for either a private company or a public agency. However, even a private company like Amtrak is subject to stringent state and federal safety regulations.
Among these federal regulations are limits on the number of hours a train engineer or operator may work without a break. It’s crucial that train personnel get adequate sleep between shifts in order to perform at their best capacity when driving the train. However, fatigue is still a big problem in the train industry.
In some circumstances, a train driver is required to turn a train around and return it to a starting point for a new run before the driver can take a break—and that can mean a very long shift. And, not every train operator follows the rules. Train engineers do occasionally fall asleep on the job.
There are other potential defendants after a train accident, including the track owner (which could be a private company or government agency), the car or truck driver who caused the accident, or the manufacturer of a part that failed.
Injuries to railroad employees
A railroad can be found liable for a worker’s injury if the railroad:
- Failed to provide proper safety training
- Failed to provide adequate safety equipment
- Required the worker to work longer hours than the regulations allow
- Required the worker to perform under unreasonable time pressure
- Failed to provide adequate employee supervision
However, an injured railroad employee—unlike any other type of worker—doesn’t file a workers’ compensation claim. Instead, they file a lawsuit under the Federal Employers Liability Act (FELA) to receive benefits for their injuries.
Under workers’ compensation, you don’t need to prove negligence in order to receive benefits. FELA is a little different because the injured worker does need to show that the railroad was negligent in order to be compensated for their work-related injury costs.
Wisconsin train accidents with vehicles or pedestrians
If you were injured in a Wisconsin train accident as a train passenger in a crash, it would be hard for any court to find you liable for any part of your injury—unless you were behaving in a particularly dangerous manner (roller skating in the aisle?), it would be difficult for a court to find you liable for your own injuries.
The exception could be accidents like slip- or trip-and-fall injuries while boarding or leaving the train or similar types of injuries (for example, getting stuck in a train door, etc.).
However, if you were injured by a train from outside the train—as a person on or near the train tracks—it could be more complicated to recover damages from a personal injury lawsuit if the court finds that you were partially liable for your injuries.
But I got hit by a train while driving my car over train tracks! How is that my fault?
Wisconsin follows a modified comparative fault rule (51 percent rule). That means if the plaintiff (the injured person) is 50 percent liable or more, they cannot recover damages. If they fall under that 50 percent threshold, their damages would be reduced according to their percentage of fault.
If you were to file a personal injury lawsuit for this type of Wisconsin train accident, the court would look at whether you were negligent by being on the tracks in the first place. If you were at a marked rail crossing, did you try to “beat” the train even though the signals indicated one was approaching? These are factors that would influence whether or not you could receive damages, and if so, how much.
5 tips to avoid a train crossing accident
Aside from a large train-related disaster (which is rare), a train crossing is the most dangerous interaction with trains and the most likely way to be injured. Fortunately, you can avoid a train accident at a crossing by following a few simple recommendations.
Stay clear of a moving train
Most trains aren’t filled with passengers—they might be cargo or freight trains and could be carrying hazardous material like toxic chemicals, flammable gases or fluids. There’s always a risk that something could happen that would cause chemical leakage. Even if you’re certain you’re too far away to be hit by a passing train, you should maintain enough distance to be safe from any kind of substance that might be leaking.
Don’t assume you know the train schedule
You never know when a train is coming... even if you think you do.
There are lots of reasons why a train schedule might change. Weather, loading and personnel issues could all cause delays or changes in the normal schedule. Always take the same level of precautions when approaching or crossing tracks, even if you think the train has already passed.
Never try to “beat” the train
There’s no comparison between the size and weight of a train versus your car. You won’t win at a game of “chicken” with a train. Ever.
Most cars can’t stop on a dime. A train, with all that weight behind it, definitely can’t stop quickly. By the time the conductor sees a car or person on the train tracks, it’s likely already too late to stop a moving train before a collision.
Don’t rely on visual distance indicators
A locomotive can be 10 feet wide and 17 feet high. They’re streamlined, which gives the appearance of being farther away down the track than they actually are. If you hear or see a train, stay off the tracks until it has passed, even if it looks or sounds like it’s far away.
Avoid recreation on or near railroad tracks
Don’t use railroad tracks for recreational activities, such as walking, biking, hiking, motorcycling, taking pictures or other activities.
What to do if you’re involved in a Wisconsin train accident
If you’ve been in a train accident, you might want to consult a Wisconsin train accident lawyer. Know that it’s against a lawyer’s code of ethics to approach an accident victim to solicit business (with the exception of a lawyer who is a friend or family member).
Because they’re unusual, a train accident is often newsworthy. There could be some lawyers who seek out the victims of an accident and offer their legal services, even visiting them at their houses or in their hospital rooms. It’s much better to find a lawyer on your own.