Papers Presented

TRAFFIC CONTROL DEVICES AT RAILROAD: HIGHWAY GRADE CROSSINGS
(Co-authored with Kenneth W. Heathington, P.h.D, P.E.)

Introduction

Railroads consistently make the argument in court that they are prohibited from selecting and installing traffic control devices at railroad-highway grade crossings. While this argument is not correct, nevertheless, if the court is not aware of the application of the regulations regarding this issue, the argument may be made to the jury resulting in confusion as to whether nor not a railroad can actually select and install traffic control devices at a crossing.

If the jury believes that the railroads are not permitted to select and install traffic control devices at a railroad-highway grade crossing, then any legal requirements for safety by the railroads imposed by state law may be ignored. This paper addresses the issues involving the selecting and installing of traffic control devices at railroad-highway grade crossings.

Analysis Of Issues

The railroads make the claim that the Manual on Uniform Traffic Control Devices (MUTCD) forbids anyone but a public body to select and install traffic control devices at a railroad-highway grade crossing.(1) A brief review of the use of the MUTCD and the general requirements and limitations of the MUTCD are in order to understand the fallacy of the arguments made by the railroads.

MUTCD And Easterwood

Since the MUTCD came into being in about 1935, there have been many changes in the MUTCD over the years to bring about more uniformity in the United States in the use of traffic control devices and to comply internationally with the use of traffic control devices in certain areas.(2) With the adoption of the MUTCD by the states, which is a requirement for receiving federal funding on highway projects, a unification of the standards for traffic control devices applicable to the different classes of road and street systems was achieved. The uniformity in traffic control devices includes type, placement, need, etc., and, of course, includes "Part VIII - Traffic Control Systems for Railroad-Highway Grade Crossings". The MUTCD controls placement of all traffic control devices used at railroad-highway grade crossings including crossbuck signs, stop signs, stop lines, advance pavement markings, advance warning signs, center line markings, no-passing markings, etc., in every state whether installed by a state, city, county, a railroad, or for that matter any other entity.

In the early 1970s when the federal program began which made federal monies available for making improvements at railroad-highway grade crossings, many states allocated some of the funds to the installation of crossbuck signs and other types of passive traffic control devices that would be required by the MUTCD.(3) None of the activities conducted by the states in bringing a crossing into compliance with the MUTCD is considered to be a crossing "upgrade" or "improvement" nor does this activity require "substantial funds" for a given crossing as defined in the Code of Federal Regulations (see 23 CFR 646.204).(4) All railroad-highway grade crossings are to be in compliance with MUTCD standards. If a crossing is not in compliance, then it is below standards and is required to be brought to minimum standards.

Meeting "minimum standards" at a crossing does not mean that "adequate standards" have been met. Improvements to crossings relate to the actual physical construction to improve or eliminate a railroad-highway grade crossing or accomplish other railroad involved work (see 23 CFR 646.204).(5) Preliminary engineering means the work necessary to produce construction plans, specifications, and estimates to the degree of completeness required for undertaking construction, including locating, surveying, designing, and related work (see 23 CFR 646.204).(6) Bringing a crossing into compliance with the MUTCD does not relate to construction nor does it require preliminary engineering - the specifications are provided in the MUTCD (see MUTCD, Part VIII), nor does it mean that adequate standards are met. Grade crossing improvements as defined in the Code of Federal Regulations relate to the installation of active traffic control devices or the elimination of a crossing (see 23 CFR 646.214)(7)

The term "up-grade" or "improvement" means to raise the grade level of protection of a crossing. The term is used to mean that a crossing has been elevated to a higher level of protection than was previously at the crossing. A crossing up-grade is considered to be when a passive crossing is converted to an active crossing or when an active crossing with flashing light signals is converted to one having gates with flashing light signals. These are situations where a crossing has been up-graded to a higher level of protection (see discussion in Easterwood on compliance with MUTCD).(8) The minimum standards in the MUTCD for railroad-highway grade crossings are only passive traffic control devices and are required at a minimum. The MUTCD only requires passive traffic control devices at a railroad-highway grade crossing (see Part VIII of MUTCD). To up-grade a crossing requires a level of protection above the minimum standards of passive traffic control devices.

It would be inappropriate and technically inaccurate to use the term "up-grade" or "improvement" as defined in 23 CFR 646.204 when just placing crossbuck signs, advance warning signs, pavement markings, no-passing markings or reflective tape on crossbuck sign posts at a crossing. These passive traffic control devices are the minimum level of protection found at crossings in the United States (see Easterwood and MUTCD, Part VIII). Reflectorized crossbuck signs are required at every crossing in the United States (see Part VIII in MUTCD); advance warning signs are generally required at every crossing (there are minor exceptions - see MUTCD); and advance pavement markings and no-passing markings are required at certain crossings (see MUTCD). Installing or replacing crossbuck signs at a crossing or installing or replacing advance warning signs, pavement markings, no-passing markings and/or even reflective tape at a crossing is not an "up-grade" or "improvement" as used in 23 CFR 646.204 and as used in Easterwood.

Numerous crossings that received funding for crossbuck signs, reflectorized tape or had the traffic counted have subsequently been "up-graded" as defined in 23 CFR 646.204. The crossbuck signs and/or reflective tape were not considered adequate traffic control devices and the crossings were up-graded to conform with federal standards found in the Code of Federal Regulations. The funds spent on the crossing prior to any installation of active traffic control devices to comply with federal regulations were not for an 'up-grade" or "improvement" as defined by the Code of Federal Regulations or Easterwood.

The MUTCD does not specifically require active traffic control devices at any crossing. The guidelines used in determining when a crossing would require active traffic control devices are promulgated by the U. S. Department of Transportation as well as the American Association of State Highway and Transportation Officials (AASHTO).(9) These guidelines are also given in 23 CFR 646.214.(10) The need for and type of active traffic control devices that constitute "improvements" at a railroad-highway grade crossing are determined by evaluation of the crossing characteristics established in the guidelines, (for specifics see 23 CFR 646.214). In the use of federal funding, the evaluation is normally made by an interdisciplinary team comprised of representatives of the railroad and the various governmental agencies involved in the process (there have been exceptions to this). In the use of non-federal funds to "upgrade" a crossing, various forms of evaluation occur.

The phrase from the MUTCD which states:

The determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority.(11)

is often taken out of context. This statement is provided in the MUTCD to ensure uniformity in traffic control devices throughout the United States and that nothing can be installed at a crossing, or for that matter any other highway facility, that does not comply with the MUTCD. Any party (i.e., a railroad, city, county, etc.) installing traffic control devices at a railroad-highway grade crossing must see that the requirements of the MUTCD are met. The statement in the MUTCD can be interpreted much the same way that a city executes a building code. The city actually determines the need and selection of every building that will be built in the city. However, anyone bringing in a set of plans for a building that conforms to the building code will be given permission to construct the building. In similar manner, the approval for the installation of traffic control devices is obtained from a public agency and the traffic control devices are installed under the "authority" of the public agency. This is the practice throughout the United States.

The use of federal funds at a crossing to bring that crossing into compliance with the MUTCD is not considered an activity that pre-empts state law regarding a railroad's responsibility for safety at a crossing. The Supreme Court stated in Easterwood that:

. . . pre-emption is not established by 23 CFR 646.214 (b) (1)'s requirement that the States comply with the Manual on Uniform Traffic Control Devices for Streets and Highways and by that Manual's declaration that the States determine the need for, and type of, safety devices to be installed at a grade crossing."(12)

The Supreme Court further stated in Easterwood:

Likewise, the requirement that the States comply with the MUTCD does not cover the subject matter of the tort law of grade crossings. Petitioner's contrary reading rests primarily on language which appears in Part VIII of the Manual, entitled "Traffic Control Systems for Railroad-Highway Grade Crossings":

"The highway agency and the railroad company are entitled to jointly occupy the right-of-way in the conduct of their assigned duties. This requires joint responsi bility in the traffic control function between the public agency and the railroad. The determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority. Subject to such determination and selection, the design, installation and operation shall be in accordance with the national standards contained herein." Manual, at 8A-I. [FN9]

According to petitioner, the third sentence of this paragraph, combined with the directive in 23 CFR s 646.214(b) (1) that the States comply with the Manual, amounts to a determination by the Secretary that state governmental bodies shall bear exclusive responsibility for grade crossing safety. Petitioner's argument suffers from an initial implausibility: it asserts that established state negligence law has been implicitly displaced by means of an elliptical reference in a Government manual otherwise devoted to describing for the benefit of state employees the proper size, color, and shape of traffic signs and signals. Not surprisingly, the Manual itself disavows any such pretensions: "It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation." Manual, at IA-4. The language on which petitioner relies undermines rather than supports its claim by acknowledging that the States must approve the installation of any protective device even as the railroads maintain "joint responsibility" for traffic safety at crossings. As is made clear in the Federal Highway Administration's guide to the Manual, the MUTCD provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between the federal and state Governments and between States and railroads:

It is clear that the Supreme Court did not pre-empt a railroad from responsibility for crossing safety just because a state has complied with the MUTCD in placing traffic control devices at a crossing. Neither the guidelines in the MUTCD nor 23 CFR, as interpreted by the United States Supreme Court, pre-empt the responsibility of a railroad for safety at a crossing. States routinely use federal moneys to bring crossings into compliance with the MUTCD and can spend various amounts of money in so doing. The Supreme Court has clearly stated that these functions, as performed by the states, do not relieve a railroad of the responsibility for crossing safety (see Easterwood, pp. 4-5).

Federal Railroad Administration

The Federal Railroad Administration (FRA) wanted to provide certain protection to the railroads by prohibiting through federal regulations the railroads from selecting and installing traffic control devices at railroad-highway grade crossings. The FRA proposed new rule making in the Federal Register of Thursday, March 2, 1995 limiting the ability of railroads to install traffic control devices at railroad-highway grade crossings. In the FRA summary statement they said:

FRA proposes to prohibit railroads from unilaterally selecting and installing highway-rail grade crossing warning systems at public highway-rail crossings.(13)

What is strange is that the FRA would propose such rule making if the railroads were already prohibited from selecting and installing traffic control devices at crossings. If the railroads were prohibited by the MUTCD from selecting and installing traffic control devices at railroad-highway grade crossings, this proposed rule making was a large waste of taxpayers money. However, FRA, through this proposed rule making, was simply stating that the railroads could at the present time select and install traffic control devices at crossings.

This proposed rule by FRA was strongly opposed by a large number of individuals and groups. After a two day public hearing in June 1995, and the receipt of filings for and against the proposed rule, FRA on August 8, 1997 terminated the proposed rule making action and published this action in the Federal Register. In announcing the termination of the proposed rule making, FRA stated:

Termination of this rulemaking is based on public comments and FRA's determination that railroad safety will not be best served by issuance of such a regulation at this time.(14)

As can be seen, the FRA did not believe that railroad safety would be best served if railroads were prohibited from selecting and installing traffic control devices at railroad-highway grade crossings. The results of the termination of the proposed rule making is that it is clear that the railroads can select and install traffic control devices at crossings.

States’ Position

Most states, if not all, take the position that the railroads can install traffic control devices at railroad-highway grade crossings as long as the traffic control devices comply with the MUTCD. Depositions and affidavits of state officials responsible for railroad-highway grade crossings have been taken over the years regarding the ability of railroads to select and install traffic control devices at crossings. All depositions and affidavits reviewed have stated that as long as the MUTCD was complied with there were no restrictions on railroads selecting and installing traffic control devices at crossings.

An example is given below which was taken from a deposition of an individual that had been the director of the division or office at the state level responsible for administering the federal program for making improvements at railroad-highway grade crossings with federal monies. The statements made by this individual are similar to statements made by various state officials throughout the United States.

The gentleman testified in his deposition that a railroad could install traffic control devices at crossings in his state as long as the devices met the requirements of the MUTCD. The individual stated regarding the ability of a railroad to install gates at a crossing:

I can't imagine that we would have not said, you're allowed to put it in. Quite frankly, I don't think we could have stopped them.

The statements of this individual are consistent with the practices in all of the states that these authors have worked in which consist of a large number.

The argument made by railroads that they are prohibited from installing traffic control devices at crossings is simply false, and it has always been false. This is just an argument to try to alleviate responsibility for safety at crossings.

Practice Pointers

The railroad will attempt to take the position in trial that it is not negligent because it has "no duty" towards the vehicular driver, or will take the position that the railroad’s "hands are tied" and that the particular state in question is the sole initiator of upgrading a crossing with protective devices. If the railroad is allowed to run this play, it will continually hammer on these points through testimony and questioning. If this type of evidence and un-objected to questions are allowed to stand, the jury, many times, will conclude that there is nothing that the railroad could have done to have avoided that particular accident. Practitioners should take heart, as there are things that can be done to counter this anticipated position.

First, the practitioner should prepare a trial brief for presentation to the judge so that he or she can understand how and why the railroad does have a duty to the traveling public at grade crossings. Many times a trial judge is overwhelmed with the railroad’s well-rehearsed rhetoric and quotes from selected sources that purport to support its position. Second, the practitioner can bring the previously-discussed anticipated positions of the railroad to the attention of the court through a motion in limine.

A motion in limine is a procedural device that permits a party to identify, before trial, certain evidentiary rulings that the court may be asked to make. The purpose of this procedure is to prevent the presentation of potentially prejudicial information in front of a jury before a ruling can be obtained. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963); Austin v. Shampine, 948 S.W.2d 900, 912 (Tex. App. -- Texarkana 1997, writ filed). The motion in limine is designed to avoid the injection of irrelevant, inadmissible, and/or prejudicial information in the trial. Wilkins v. Royal Indemnity Co., 592 S.W.2d 64, 66 (Tex. Civ. App. -- Tyler 1979, no writ). The motion should be heard and ruled upon prior to the commencement of voir dire.

The thrust of the plaintiff’s motion in limine on these points will be to prevent the railroad from misleading and confusing the jury by introducing evidence and making inferences that the railroad has no duty to the traveling public in regards to the evaluation and need for active warning devices at railroad grade crossings. The practitioner should consider filing a motion in limine requesting the court to instruct the railroad not to mention, hint, suggest, inquire or introduce evidence regarding any misstatement of the law, including, but not necessarily limited to:

(1) That the railroad did not owe a legal duty to the traveling public at the particular crossing in question;

(2) That the railroad was not authorized to install traffic control devices at a particular railroad grade crossing prior to the time that the crossing appeared on a state priority index list;

(3) That the railroad did not owe a legal duty to the traveling public to maintain the particular crossing within the right-of-way owned by the railroad;

(4) That the railroad can only purchase and install traffic control devices with federal and state funds; and

(5) That providing a safe crossing from the standpoint of the traveling public is not the railroad’s responsibility, but is solely the duty and responsibility of the state or federal government.

These are all issues that should be addressed in the practitioner’s trial brief prior to the commencement of voir dire. Even if the court does not grant all of the practitioner’s motion in limine points, the practitioner should be ready to object to any question posed by the railroad’s attorneys which may misrepresent what the law is. At a minimum, the practitioner in his or her objection, can counter the impact on the jury by correctly stating what the law is to the jury. By following these steps, the negative impact on the jury by a railroad’s misstatement of the law can be minimized.

Summary

It is clear that the railroads are not prohibited from selecting and installing traffic control devices at railroad-highway grade crossings. This has even been officially stated by the FRA who has stated that railroad safety will not be best served if railroads were prohibited from selecting and installing traffic control devices at crossings. In addition, the states welcome any initiatives by the railroads to upgrade crossings as long as the MUTCD is complied with. The failure of the railroads to select and install traffic control devices at railroad-highwaygrade crossings is by choice - not by being prohibited from so doing.

The railroads should be prohibited from arguing in court that they cannot install traffic control devices at crossings. The argument made by the railroads is contrary to practice and law and should not be permitted to be presented in court.

(1)Manual on Uniform Traffic Control Devices, Federal Highway Administration, U. S. Department of Transportation, 1988.

(2)Id.

(3)Id.

(4)23 CFR part 646 - "Railroads" (1990) including CFR 646.101 through 646.220.

(5)Id.

(6)Id.

(7)Id.

(8)CSX Transportation v. Easterwood, 113 S.Ct. 1732.

(9)Railroad-Highway Grade Crossing Handbook, Federal Highway Administration, U. S. Department of Transportation, 1978; Railroad-Highway Grade Crossing Handbook (Second Edition), Federal Highway Administration, U.S. Department of Transportation, 1986; A Policy on Geometric Design of Highways and Streets, American Association of State Highway and Transportation Officials, Washington, D.C., 1984; and A Policy on Geometric Design of Highways and Streets, American Association of State Highway and Transportation Officials, Washington, D.C., 1990.

(10)Id.

(11)Id.

(12)CSX Transportation v. Easterwood, supra.

(13)49 CFR Part 234 - "Selection and Installation of Grade Crossing Warning Systems; Notice of Proposed Rulemaking" (March 2, 1995).

(14)49 CFR Part 234 - "Selection and Installation of Grade Crossing Warning Systems; Termination of Rulemaking" (August 8, 1997).