I

Overview

The purpose of the Railroad-Highway Grade Crossing Handbook—Revised Second Edition is to provide a single reference document on prevalent and best practices as well as adopted standards relative to highway-rail grade crossings. The handbook provides general information on highway-rail crossings; characteristics of the crossing environment and users; and the physical and operational improvements that can be made at highway-rail grade crossings to enhance the safety and operation of both highway and rail traffic over grade crossings. The guidelines and alternative improvements presented in this handbook are primarily those that have proven effective and are accepted nationwide.

The revised second edition of the handbook supersedes the Railroad-Highway Grade Crossing Handbook— Second Edition published in September 1986. This update includes materials that were included in the previous version of the handbook, supplemented with new information that was available at the time of the update. Decisions regarding the selection, configuration, modification, and construction of improvements at highway-rail grade crossings should reflect the policies and standards of the affected railroad(s) and involved jurisdictions, including state-level agencies, and should address these specific requirements in applying the general principles and practices provided in this manual.

A. Background

1. Introduction to Highway-Rail Grade Crossings

The highway-rail grade crossing is unique in that it constitutes the intersection of two transportation modes, which differ in both the physical characteristics of their traveled ways and their operations.

Railroad transportation in the United States had its beginning during the 1830s and became a major factor in accelerating the great westward expansion of the country by providing a reliable, economical, and rapid method of transportation. Today, railroads are major movers of coal; ores; minerals; grains and other farm products; chemicals and allied products; food and kindred products; lumber and other forest products; motor vehicles and equipment; and other bulk materials and products.

In addition, railroads contribute to the movement of non-bulk intermodal freight, which also moves by water and highway during the journey from origin to destination. Finally, although few privately-operated passenger services operate on Class I railroads, publicly-funded long distance, corridor, and commuter services as well as light-rail transit lines all may operate through grade crossings.

As additional railroad lines were built and extended, they facilitated the establishment and growth of towns in the midwest and west by providing a relatively rapid means of transporting goods and people. Towns depended on the railroads and, therefore, were developed along railroad lines. The federal government and certain states encouraged westward expansion of the railroads and supported them financially by land grants and loans. The federal government enjoyed reduced freight rates on its cargoes for many years as a result of these land grants.

In the east, railroads were built to serve existing towns and cities. Many communities wanted a railroad, and certain concessions were made to obtain one. Railroads were allowed to build their tracks across existing streets and roads at grade, primarily to avoid the high capital costs of grade separations. As people followed the railroads west, there was a need for new highways and streets, most of which, primarily for economic reasons, crossed the railroads at grade.

Table 1. Railroad Line Miles and Track Miles

Source: “Railroad Facts.” Washington, DC: Association of American Railroads, 2004.

The number of railroad line miles grew until a peak was reached in 1920, when 252,845 miles of railroad line were in service. Track miles are defined as the total centerline length of mainline trackage in a corridor. The number of railroad line miles and track miles has been decreasing since the 1930s, as shown in Table 1.

Initially, safety at highway-rail grade crossings was not considered a problem. Trains were few in number and slow, as were highway travelers who were usually on foot, horseback, horse-drawn vehicles, or cycles. By the end of the century, crossing collisions were increasing and communities became concerned about safety and delays at crossings. Many states, cities, and towns adopted laws, ordinances, and regulations that required the railroads to eliminate some crossings and provide safety improvements at others.

Highway-rail grade crossings became more of a concern with the advent of the automobile in the early 1900s. By 1920, vehicles traveled approximately 45 billion miles annually. Vehicle miles of travel increased more than 66-fold during the intervening 85 years to approximately 3 trillion vehicle miles in 2004.¹ More recently, vehicle miles of travel have been increasing at a rate of approximately 3.1 percent per year. Road mileage also grew during those 85 years to approximately 3.99 million miles in 2004.²

The number of highway-rail grade crossings grew with the growth in highway miles. In cities and towns, the grid method of laying out streets was utilized, particularly in the midwest and west. A crossing over the railroad was often provided for every street, resulting in about 10 crossings per mile. In 2005, there were 248,273 total intersections of vehicular and pedestrian traveled ways with railroads. This equates to approximately 2.4 crossings per railroad line mile.

Crossings are divided into categories. Public crossings are those on highways under the jurisdiction of and maintained by a public authority and open to the traveling public. In 2005, there were 181,886 public crossings, of which 147,805 were at grade and 34,081 were grade separated. Private crossings are those on roadways privately owned and utilized only by the landowner or licensee. There were 97,306 private crossings in 2005. Pedestrian crossings are those used solely by pedestrians. There were 3,162 pedestrian crossings in 2005.

Sixty-one percent, or 90,274 of public at-grade crossings were located in rural areas, compared to 57,531 in urban areas. For both urban and rural areas, the majority of crossings are located on local roads, as depicted in Table 2. Twenty-one percent of public at-grade crossings are located on federal-aid highways, as shown in Table 3.

2. Safety and Operations at Highway-Rail Grade Crossings

National statistics on crossing collisions have been kept since the early 1900s as a result of the requirements of the Accident Reports Act of 1910. The act required rail carriers to submit reports of collisions involving railroad personnel and railroad equipment, including those that occurred at crossings. Not all crossing collisions were reported because the railroads were required to report only those collisions that resulted in:

•    A fatality;

•    An injury to a person sufficient to incapacitate him or her for a period of 24 hours in the aggregate during the 10 days immediately following; or

•    More than $750 in damage to railroad equipment, track, or roadbed.

Table 2. Public At-Grade Crossings by Functional Classification, 2005

* Note: Crossings classified as “Interstate” are typically located on ramps.

Source: Unpublished data from Federal Railroad Administration.

Table 3. Public At-Grade Crossings by Highway System, 2005

*Note: Crossings classified as “Interstate” are typically located on ramps.

Source: Unpublished data from Federal Railroad Administration.

These reporting requirements remained essentially the same until 1975, when the Federal Railroad Administration (FRA) redefined a reportable highway-rail grade crossing collision. Under the new guidelines, any impact “between railroad on-track equipment and an automobile, bus, truck, motorcycle, bicycle, farm vehicle, pedestrian or other highway user at a rail-highway crossing” must be reported.³

Table 4 gives the number of fatalities occurring at public highway-rail grade crossings from 1920 to 2004. Also shown separately are fatalities resulting from collisions involving motor vehicles. Table 5 provides data on the number of collisions, injuries, and fatalities at public highway-rail grade crossings for the period from 1975 to 2004. Collisions and injuries from 1920 to 1974 are not provided because not all collisions and injuries were required to be reported during those years.

The variation in the number of motor vehicle fatalities appears to be related to various occurrences over the years. From 1920 to 1930, railroad expenditures for the construction of grade separations and crossing active traffic control devices were extensive. During the early four-year period of the depression, railroad expenditures for crossing improvements lagged, and the number of motor vehicle fatalities increased. Starting in 1935, some special federal programs were initiated to improve crossing safety, and the number of motor vehicle fatalities began to decrease. During the war period of the 1940s, crossing improvement work was greatly reduced, and the number of motor vehicle fatalities remained fairly constant. Since 1946, federal aid has increased, and the number of motor vehicle fatalities at crossings has been decreasing correspondingly.

During the period between 1960 and 1967, the number of fatalities increased in spite of continual federal funding for grade separations and crossing traffic control device improvements. A national concern for crossing safety developed, as witnessed by national conferences to address the increase in casualties. The U.S. Congress responded by establishing a categorical funding program for crossing safety improvements in the 1973 Highway Act. This categorical safety program was extended in the 1976 Highway Act and the 1978 and 1982 Surface Transportation Acts. The result of this safety program and other emphases on crossing safety is demonstrated in Tables 4 and 5, which show the dramatic reduction in the number of fatalities involving motor vehicles.

Table 4. Fatalities at Public Crossings, 1920–2004

Source: Federal Railroad Administration Safety Data Website (safetydata.fra.dot.gov/officeofsafety).

Approximately 6.3 million motor vehicle traffic collisions occurred in 2002. Crossing collisions accounted for 0.05 percent of all motor vehicle collisions on public roads. However, the severity of crossing collisions demands special attention. In 2002, there were 318 motor vehicle fatalities at crossings and a total of 42,452 motor vehicle fatalities. Therefore, crossing fatalities accounted for 0.8 percent of all motor vehicle fatalities. One out of every 149 vehicle collisions resulted in a fatality, but one out of every 10 crossing collisions resulted in a fatality.⁴

In addition to the possibility of a collision between a train and a highway user, a highway-rail grade crossing presents the possibility of a collision that does not involve a train. Non-train collisions include rear-end collisions in which a vehicle that has stopped at a crossing is hit from the rear; collisions with fixed objects such as signal equipment or signs; and non-collision accidents in which a driver loses control of the vehicle.

Table 5. Collisions, Fatalities, and Injuries at Public Crossings, 1975–2004

Source: Federal Railroad Administration Safety Data Website (safetydata.fra.dot.gov/officeofsafety).

These non-train collisions are a particular concern with regard to the transportation of hazardous materials by truck and the transportation of passengers, especially on school buses. Drivers of these “special vehicles” are, under federal regulation and many state laws, required to stop at all crossings and look and listen for a train before proceeding to cross the tracks. The driver of a vehicle following a special vehicle may not expect to stop and may rear-end the vehicle, perhaps resulting in a catastrophic collision.

The current practices of existing railroads in general are to consolidate and close grade crossings where feasible. The creation of new at-grade crossings is not a preferred approach to addressing highway mobility. Grade crossing closure initiatives have contributed to improved safety and are discussed in Chapter IV.

Although safety is a primary concern, highway-rail grade crossings affect the public and railroads in other ways. In the 19th century, most communities and cities welcomed and actively encouraged the construction of railroad lines to and within the community. As the benefits of this transportation service were realized, the communities and the railroad system within communities grew. Today, highway-oriented transportation provides much of the service needed for commercial and other land uses in and near central cities. Newer industrial developments that need rail transportation are frequently located in outlying areas.

Historically, railroads came into the centers of communities because the railroads were first or because communities wanted the railroads to provide transportation to the rest of the country. In today’s environment, especially with high vehicular traffic, conflicts have arisen over railroads’ location in central cities.

From the community viewpoint, railroads are now a dividing force providing delays, congestion, and concerns over emergency vehicle response while trains are moving through, blocking many street crossings. Some communities impose speed restrictions on trains, exacerbating the delays because trains take longer to clear crossings.

From the railroad viewpoint, speed restrictions are undesirable because of the delays incurred by trains slowing down to pass through the community. However, the central city location has an advantage. Its right of way may be attractive to power companies who wish to reach electric customers in the city. Hence, railroads may lease space for electric power transmission lines. Also, with the new development of fiber optic cables for high-capacity communications services, communications carriers are also finding railroad rights of way into center cities very attractive. Finally, rail alignments through urban centers provide station locations with convenient access to central-city destinations. Thus, on the positive side, communities and railroads both are finding advantages in communicating and cooperating with each other on this mutual situation.

Construction activities on public roadways, nominally within 25 feet of an active rail track, and proposed roadway modifications, nominally within 10 feet of an active rail track, should include consideration for the procedures applicable to design and construction of improvements within railroad rights of way as well as any provisions solely applicable to construction within the roadway right of way.

B. Highway-Rail Grade Programs^*

* “Geometric Design Standards for the National System of Interstate and Defense Highways.” Washington, DC: U.S. Department of Commerce, Bureau of Public Roads, approved July 17, 1956.

The first authorization of federal funds for highway construction in modern times occurred in 1912, when Congress allocated $500,000 for an experimental rural post road program. The Federal-Aid Road Act of 1916 provided federal funds to the states for the construction of rural post roads. These funds could be expended for safety improvements at highway-rail grade crossings as well as for other highway construction. The states had to match the federal funds on a 50-50 basis and often required railroads to pay the state’s 50-percent share or more.

The Federal-Aid Highway Act of 1921 provided funds with similar provisions, except that the expenditure of federal funds was limited to a connected system of principal roads, which was the predecessor of the former Federal-Aid Primary Highway System and of the current National Highway System.

The Depression era of the 1930s brought about a change in railroad and highway traffic volumes and created a need for federal assistance to improve safety as well as to provide employment throughout the United States. Congress passed the National Industrial Recovery Act in 1933, which, among other things, authorized the president to provide grants totaling $300 million to the states to be used in paying any or all of the costs of eliminating the hazards of highway-rail grade crossings. The states did not have to provide matching funds, and the improvements did not have to be made at crossings on the Federal-Aid Highway System.

The Hayden-Cartwright Act of 1934 authorized additional funds for the construction of highway-rail grade separations and traffic control devices at crossings. Federal funds were available for initial construction costs but not for right-of-way costs or maintenance. Other federal-aid highway funds were provided in the Emergency Relief Act of 1935, the Authorization and Amendment Act of 1936, the Federal-Aid Highway Act of 1938, and the Federal Highway Act of 1940. In spite of these efforts to eliminate crossings, the number of crossings steadily increased due to the number of highway construction projects being carried out during the same period.

The Federal-Aid Highway Act of 1944 authorized the expenditure of federal funds for federal-aid highways in urban areas, provided for the designation of a Federal-Aid Secondary System, and made the first provisions for a national system of interstate highways. Although states had to provide 50-percent matching funds for expenditures on primary, secondary, and urban systems, the entire cost for the elimination of highway-rail grade crossing hazards on federal-aid systems could be paid from federal funds. However, no more than 50 percent of the right-of-way and property-damage costs could be paid with federal funds. In addition, no more than 10 percent of the total funds apportioned to each state in any given year could be used for crossing projects on a reimbursable basis of up to 100 percent.

In 1956, Congress established the National System of Interstate and Defense Highways. This same act ushered in the modern era of highway funding by establishing the Highway Trust Fund. The design criteria for interstate highways, approved July 17, 1956 by the U.S. Department of Commerce, Bureau of Public Roads, stated that railroad crossings were to be eliminated for all through traffic lanes.

In 1962, the Interstate Commerce Commission conducted an investigation of highway-rail grade crossing safety. It concluded that the public was now responsible for crossing safety and recommended that Congress take appropriate action by stating:

Since the Congress has the authority to promulgate any necessary legislation along this line it is recommended that it give serious study and consideration to enactment of legislation with a view to having the public including the principal users, assume the entire cost of rail-highway grade crossing improvements or allocating the costs equitably between those benefited by the improvements.⁵

In 1970, Congress passed two acts, the Highway Safety Act and the Federal Railroad Safety Act, which contained specific provisions concerning highway-rail grade crossings. The Highway Safety Act of 1970 authorized two demonstration projects, one for the elimination of at-grade crossings along the highspeed rail passenger Northeast Corridor between Washington, DC, and Boston, Massachusetts, and the other for the elimination of crossings or the installation of traffic control devices at public crossings in and near Greenwood, South Carolina.⁶ The act provided $31 million for these demonstration projects.

The Railroad Safety Act of 1970 required the secretary of transportation to undertake “ . . . a comprehensive study of the problem of eliminating and protecting grade crossings” and to provide “recommendations for appropriate action, including, if relevant, a recommendation for equitable allocation of the economic costs of any such program proposed as a result of such study.”⁷ Similarly, the Highway Safety Act of 1970 called for “ . . . a full and complete investigation and study of the problem of providing increased highway safety at public and private ground-level rail-highway crossings . . . including the estimate of the cost of such a program.”

The Federal Highway Administration (FHWA) and FRA prepared a two-part report to satisfy the requirements of the legislation. Part I discussed the crossing safety problem; Part II provided crossing improvement recommendations, one of which was a federal funding program exclusively for crossings. The secretary also recommended that the U.S. Department of Transportation (U.S. DOT), in cooperation with the railroad industry and appropriate state agencies, develop a national inventory of and uniform national numbering system for crossings. In addition, the secretary recommended emphasizing highway-rail grade crossing safety research and furthering efforts to educate drivers regarding the potential hazards of crossings. The report was presented in November 1971.⁸

Over the next two years, there were three significant regulatory actions by FHWA in the area of highway-rail crossings:

•    May 3, 1972: FHWA reissued Policy and Procedure Memorandum 21-16, Highway Safety Improvement Program (HSIP). States were required for the first time to include highway-rail grade crossing projects as an integral part of their safety programs.⁹

•    October 27, 1972: FHWA issued Instructional Memorandum 21-5-72, which dealt with railroad cost liability on projects and stated that the installation or improvement of grade crossing protective devices was found to be of no net ascertainable benefit to the railroad. Therefore, the railroad was to be assigned no liability in the costs of such work.¹⁰ • March 14, 1973: FHWA issued a notice defining the improvement of grade crossing surfaces as having safety benefits.¹¹

Based on the recommendations of the 1971 study, Congress, in the Highway Safety Act of 1973, established a categorical safety program for the elimination or alleviation of hazards at rail-highway grade crossings.¹² Section 203 of the act authorized $175 million from the Highway Trust Fund for crossing improvements on the Federal-Aid Highway System. The federal share of improvement costs was set at 90 percent.

This act also established funds for other categorical safety programs that could be used for crossing improvements at the states’ discretion. Section 230 established the Safer Roads Demonstration Program, which provided funds for safety improvements off the Federal-Aid Highway System. Funds for this program were available for three types of safety projects: to eliminate or alleviate hazards at rail-highway grade crossings; to improve high-hazard locations; and to eliminate roadside obstacles. The Pavement Marking Demonstration Program, Section 205, provided funds for pavement markings on any public road. The Federal-Aid Highway Amendments of 1974 added Section 219, which provided funds for the construction, reconstruction, and improvement of highways off the Federal-Aid Highway System.

The Federal-Aid Highway Act of 1973, Section 163, established a demonstration program to eliminate highway-rail conflicts in specified urban areas.¹³ Additional funds were provided in the Federal-Aid Highway Amendments of 1974, the National Mass Transportation Assistance Act of 1974, the Federal-Aid Highway Act of 1976, and the Surface Transportation Assistance Acts of 1976 and 1978.

These demonstration projects were intended to determine the feasibility of increasing highway safety by the relocation, consolidation, or separation of rail lines in center-city areas. The funds were available on a 95-percent to 5-percent matching ratio, with state or local governments providing the matching share.

By 1975, all public and private crossings had been surveyed in the U.S. DOT National Highway-Rail Crossing Inventory Program. This inventory showed that the majority of crossings, 77 percent, were located off the Federal-Aid Highway System and, therefore, were not eligible for improvement with federal funds from the Section 203 program. In 1976, Congress extended the Section 203 program to all public crossings. The legislation authorized an additional $250 million from the Highway Trust Fund for crossings on the Federal-Aid Highway System and $168.75 million from the general fund for crossings off the Federal-Aid Highway System.

The Surface Transportation Assistance Act of 1978 continued the Section 203 categorical program by providing $760 million for safety improvements at any public crossing—eliminating the distinction between crossings on and off the Federal-Aid Highway System.

In 1982, Congress again continued the highway-rail grade crossing safety program in the Surface Transportation Assistance Act of 1982. This act provided $760 million over the four fiscal years from 1983 through 1986.

The Surface Transportation Assistance Act of 1987 established Section 130 of Chapter 23 of the United States Code, giving the Federal-Aid Rail-Highway Grade Crossing Safety Program permanent status under the law for the first time.¹⁴

Section 130 funds were apportioned to the states in the following manner: 50 percent was apportioned to each of the states according to the ratio of the number of public crossings in the state to the number of public crossings in the country. The remainder was apportioned to the states on the basis of area, population, and road mileage. The apportionment of federal funds for crossing safety was divided in half: half was required to be used for traffic control devices at crossings (139, or RRP Funds); the other half was available for any type of crossing safety improvements (138, or RRS Funds).

In 1991, Congress passed the Intermodal Surface Transportation Efficiency Act (ISTEA). This act established the National Highway System and Surface Transportation Program (STP). The National Highway System consists of the interstate system and other highways of national significance, plus certain intermodal connections; the STP covers all other public roads and streets.

Section 1007(d)(1) of ISTEA requires that 10 percent of each state’s STP funds be set aside for safety improvements under Sections 130 and 152 (Hazard Elimination) of Title 23. It further requires that the state shall reserve in each fiscal year an amount not less than the amount apportioned in each program for fiscal year 1991. If the total set aside is more than the 1991 total for these programs, the surplus must be used for safety but may be used for either program; if the total is less than the total 1991 apportionment, the safety set-aside funds are to be used proportionately for each program. ISTEA therefore provided for the continuation of categorical safety programs.¹⁵

ISTEA removed the potential to fund railroad grade separations as 100 percent, or G-funded projects. It also reduced the percentage of a state’s federal funds that could be used for G-funded work from 25 percent, which had been in effect for many years, to 10 percent.

ISTEA also authorized the expenditure of $16.1 billion for the continuation of the on- and off-system Bridge Replacement and Rehabilitation Program. All bridges carrying highway traffic on public roads, regardless of ownership or maintenance responsibility, are eligible for improvement or replacement under this program. This includes bridges owned by railroads.¹⁶

The matching ratio for federal funds set aside under Section 1007(d)(1) is the same as that previously available for the categorical safety programs: 90 percent federal and 10 percent state or local. Section 203(f) of the Highway Safety Act of 1973 provided a mechanism for increasing the federal share where both local and state funds were incorporated into a railroad project; however, this was impractical in practice due to the highway authorization or enabling legislation in effect in most states.

Section 1021(c) of ISTEA permits an increased federal share on certain types of safety projects, including traffic control signalization; pavement marking; commuter carpooling and vanpooling; or installation of traffic signs, traffic lights, guardrails, impact attenuators, concrete barrier end treatments, breakaway utility poles, or priority control systems for emergency vehicles at signalized intersections. FHWA has determined that railroad grade crossing signals are included in traffic control signalization. In 1995, Congress passed the National Highway System Designation Act, which included a provision that made any activities associated with the closure of a highway-railroad grade crossing eligible for 100-percent federal funding.

Congress enacted the Transportation Equity Act for the 21st Century (TEA-21) in 1997. This act extended the funding arrangements (safety set-asides and other provisions) that had been established in ISTEA and the National Highway System Designation Act.

In the summer of 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), which was signed into law by the President on August 10, 2005.

SAFETEA-LU requires that each state develop a Strategic Highway Safety Plan (SHSP), which addresses engineering, management, education, enforcement, and emergency service elements of highway safety as key factors in evaluating highway safety projects. Highway-rail grade crossing safety is to be considered part of the SHSP.

SAFETEA-LU created the new HSIP, elevating it to a new core federal-aid funding program beginning in fiscal year 2006 to achieve a significant reduction in traffic fatalities and serious injuries on all public roads. This new program replaces the 10-percent safety set-aside program element of the STP established under ISTEA. It also restored categorical funding for each of the highway safety construction programs. SAFETEA-LU continues the Section 130 program and continues the option under Section 120 of funding highway-rail crossing safety measures, other than the construction of highway-rail grade separations, utilizing 100-percent federal funding. A total of $220 million in highway-railroad crossing safety funds is to be apportioned among the states for fiscal years 2006 through 2009. Half of these funds will be apportioned among the states according to the formula for apportionment of STP funding; the other half will be apportioned according to the number of public highway-rail crossings in each state. FHWA has published fact sheets on the new HSIP and the Rail-Highway Crossing provisions.^17,18

SAFETEA-LU continues the requirement that a state spend a minimum of 50 percent of its apportionment for the installation of protective devices at railway-highway crossings. The remaining funds may be spent for other types of improvements as defined in Section 130. SAFETEA-LU also contains a provision to use up to 2 percent of the funds apportioned to a state

for compilation and analysis of data for the required annual report to the secretary on the progress being made to implement the railway-highway crossings program. The HSIP also contains a provision that, to further the implementation of a state SHSP, a state may use up to 10 percent of the amount of funds apportioned to the state under Section 104(b)(5) for a fiscal year to carry out safety projects under any other section as provided in the state SHSP, if the state certifies to the secretary that:

•    The state has met needs in the state relating to railway-highway crossings; and

•    The state has met the state’s infrastructure safety needs relating to highway safety improvement projects.

In summary, there are currently three sources of federal funding for construction of highway-rail grade crossing safety improvements:

•    The state’s normal federal-aid highway funding can be used. This may include Bridge Replacement, National Highway System, or STP funding. Up to 10 percent of the state’s apportionment can be designated as G funds, or 100-percent funding, for purposes including some railroad safety projects. See ISTEA 1021(c) and Section 120 of Chapter 23, United States Code.

•    Categorical Section 130 funds may be used.

•    Funding from other categorical safety programs, such as the Safe Routes to School Program, may be used if such use is consistent with the state’s SHSP.

Activities eligible for the use of Section 130 safety funds are as follows:

•    Crossing consolidations (including the funding of incentive payments up to $15,000 on a 50-percent matching basis to local jurisdictions for crossing closures).

•    Installation of grade separations at crossings or repair of existing grade separations.

•    Signing.

•    Pavement marking.

•    Illumination.

•    New highway-railroad grade crossing signals.

•    Upgraded highway-railroad grade crossing signals or circuits.

•    Improved crossing surfaces.

•    Traffic signal interconnection/preemption.

•    Sight distance or geometric improvements.

•    Data improvements (up to 2 percent of apportionment).

Regular federal-aid highway funds may be used for safety improvements such as the installation of standard signs and pavement markings; the installation or upgrading of active traffic control devices; crossing illumination; crossing approach and surface improvements; new grade separations and the reconstruction of existing grade separations; crossing closures or the removal of existing crossings; and crossing closures by the relocation of highways and/or the relocation of railroads.

Many states have been active in crossing improvement programs for decades. States have been responsible for initiating and implementing projects under the various federal programs. In general, most states once required the railroad or the local government to provide the funds needed to match the federal contribution. However, during the 1930s, some states began to apportion financial responsibility for crossing improvements based on the benefits received by the public (through the highway agency) and the railroad through the project.

California was the first state to establish a state crossing protection fund. In 1953, the Public Utilities Commission was authorized by the legislature to expend or allocate funds from the State Highway User Fund, or any other fund, to assist the cities and counties in paying their allocated portion of the costs for the installation of active traffic control devices at crossings on non-federal-aid highways and streets. In 1957, California established a grade separation fund with an initial apportionment of $5 million per year. The purpose of the fund was to eliminate existing at-grade crossings by constructing new grade separations or by improving existing grade separations. At least 18 additional states have established separate funding programs for crossing improvements.

States may also utilize other state funds for crossing improvements and to provide the 10-percent match, which is required on some projects funded under the STP safety set-aside program in ISTEA. In addition to financing costs directly associated with the improvement of highway-rail grade crossings, all states contribute incidentally to crossing components. In general, for crossings located on the state highway system, states provide for the construction and maintenance of the roadway approaches and for signs, markings, and other traffic control devices not located on the railroad right of way. Typically, these include advance warning signs and pavement markings. Presently, about 20 states contribute financially toward the maintenance of flashing lights, gates, track circuits, crossing surfaces, and crossbucks. Additional states have utilized Section 130 or ISTEA funds to pay for projects for the installation of crossbucks at public crossings. More information on state maintenance programs is included in Chapter VII.

Local governments have contributed to highway-rail grade crossing safety improvements by providing the matching funds for improvement projects constructed under Section 130 programs. The passage of ISTEA and the availability of 100-percent federal funding for crossing signalization projects have relieved local jurisdictions of much of the funding burden and have made it possible to construct more improvement projects in smaller jurisdictions. Localities have also contributed for decades through the construction and maintenance of street approaches to crossings and the signs and pavement markings in advance of the crossings. Some cities and counties conduct traffic engineering and safety studies at specific crossing locations.

The railroad industry historically has contributed greatly to the improvement of highway-rail grade crossings. Until the advent of the automobile in the early 1900s, the railroads were considered primarily responsible for safety at crossings. After that, the concept of joint responsibility between the public and the private entity (the railroad) began to emerge. As discussed previously, the federal government and the states began to contribute financially toward crossing improvement projects, thus accepting part of the responsibility that had originally been placed solely on the railroads. The question of who is responsible for what aspect of the crossing program continues to be discussed and refined.

Although public agencies have established funding programs for crossing elimination and improvements, the railroads have continued to contribute as well. In some cases, the railroad may pay all or a part of the required matching share of a project, or the railroad may contribute “in-kind” by way of supplying materials, providing for flagging services, or constructing or signing a detour route during construction of an improvement. Railroads may also contribute through their track and crossing surface maintenance programs or through vegetation or right-of-way clearance programs to improve sight distances at crossings. Some railroads make direct cash contributions to local jurisdictions for crossing consolidations or closures.

At present, costs for maintenance of crossbucks, active traffic control devices, and crossing surfaces are primarily borne by the railroads. Except highway traffic signal gear maintained by local traffic authorities, traffic control devices integrated into

the track structure or the wayside signal system that regulates trains must be maintained by railroad personnel because highly specialized skills are required. Also, rail labor agreements generally specify that union members are to perform this type of work. An industry publication estimated that 1993 costs to the railroads were $152,566,000 for this type of maintenance work at public crossings.¹⁹ Based on the U.S. Department of Labor Consumer Price Index, this equates to approximately $206 million in 2005.

C. Responsibilities at Highway-Rail Grade Crossings^*

* Includes previously unpublished materials provided by Ray Lewis, WVDOT, 2006.

1. Fundamental Issues

An issue as old as the grade crossing safety problem itself is that of responsibility. Who should provide and pay for traffic control devices at highway-rail grade crossings?

During the years between 1850 and 1890, tremendous growth in population followed the railroads west. Consequently, there was a need for new highways and streets, practically all of which crossed the railroads at grade. In most cases, the responsibility for these crossings automatically fell upon the railroads. There were occasional collisions at crossings, but they usually were not as serious as those occurring today.

One early collision, involving the collision of a train and a wagon in Lima, Indiana, resulted in a suit that eventually reached the U.S. Supreme Court in 1877. In Continental Improvement Co. v. Stead, the Supreme Court had to decide who was responsible for the damages incurred. In its decision, the Supreme Court said that the duties, rights, and obligations of a railroad company and a traveler on the highway at the public crossing were “mutual and reciprocal.” It also said that the train had the right of way at over crossings because of its “character,” “momentum,” and the “requirements of public travel by means thereof.” The railroad, however, was bound to give reasonable and timely warning of the train’s approach.

The Supreme Court further stated that “those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching.” This Supreme Court decision clearly indicated that there was a responsibility upon railroads to warn travelers on highways of approaching trains and a responsibility upon travelers to look, listen, and stop for approaching trains.²⁰

During the late 1890s, the number of crossings and collisions increased. Many states, cities, and towns demanded that the railroads take immediate action to eliminate the hazardous crossings and to provide better traffic control devices. Numerous laws, ordinances, and regulations were enacted or adopted to enforce these demands. There was little uniformity among these laws, ordinances, and regulations; neither was the division of responsibility nor the allocation of costs specified.

In 1893, the Supreme Court, in New York and N. E. Ry. v. Town of Bristol, upheld a Connecticut statute that required the railroads to pay three-fourths the costs to improve or eliminate crossings where the highway was in existence before the railroad. If the highway was constructed after the railroad, the state required the railroad to pay one-half such costs. This so-called “Senior-Junior” principle was followed by public utilities commissions and the courts in several states to determine the railroads’ division of responsibility or liability for the construction, improvement, or elimination of crossings. From 1896 to 1935, the Supreme Court adhered to the position that a state could allocate to the railroads all or a portion of the expense or cost for the construction, maintenance, improvement, or elimination of public highway-rail grade crossings.

The crossing safety problem changed greatly with the appearance of motor vehicles on U.S. streets and highways in 1893. As the number of motor vehicles, highway mileage, and railroad trackage increased, so did the number of crossings and crossing collisions. Demands for the elimination of crossings grew stronger nationwide. Because of the dominance and financial status of the railroad industry during this period, the public, state legislative and regulatory bodies, and most of the courts did not hesitate to place the major or entire responsibility for crossing separations and improvements on the railroads. By 1915, the railroads were beginning to feel the impacts of the crossing safety problem and established a national committee to study the problem. During the period from 1915 to 1924, this committee, the National Safety Council, and the American Railway Association engaged in extensive public education programs to reduce the number of collisions at crossings.

The Depression era of the 1930s brought about abrupt and varying changes in the volumes of rail and highway traffic, which contributed to changes in the responsibility for crossing improvements. A new idea of public responsibility for crossings was enhanced by Congress in its passage of the National Recovery Act of 1933 and the Hayden-Cartwright Act of 1934, which provided funds for the construction of highway-rail grade separations and the installation of crossing traffic control devices.

This expanded federal highway construction program had a great deal of influence on the Supreme Court’s landmark decision in Nashville, C. & St. L. Ry. v. Walters in 1935. Justice Brandeis, writing for the majority of the Court, said:

The railroad has ceased to be the prime instrument of danger and the main cause of collisions. It is the railroad which now requires protection from dangers incident to motor transportation.²¹

In light of that decision, some state legislatures, commissions, and courts revised their division of responsibility criteria and the resulting allocation of costs relating to crossing safety projects.

The Federal-Aid Highway Act of 1944 provided that any railroad involved in any crossing improvement, paid for entirely or in part with federal funds, would be liable to the United States for “a sum bearing the same ratio to the net benefits received by such railway from such project that the Federal funds expended on such project would bear to the total cost of such project.” The subsection also provided that the net benefits received by a railway should not “be deemed to have a reasonable value in excess of ten percent of the cost of any such project.” The commissioner of public roads was authorized to determine the railroad benefits on the basis of recommendations made by the state highway departments and other information.

During the period from 1944 to 1946, many crossing safety projects were delayed or never started because of prolonged negotiations, arguments, and litigation on the subject of railroad benefits. A compromise was eventually reached whereby each of the crossing improvement projects would be classified in one of five general classes. Depending upon the classification assigned to an individual project, the railroads would be liable for up to 10 percent of the cost of crossing improvements financed with federal-aid highway funds. FHWA later modified this policy and, presently, the railroads are required to share only up to 5 percent of the costs of certain types of crossing work on federal-aid highway projects.

In the early 1960s, the Interstate Commerce Commission completed an investigation to determine what action should be taken to prevent crossing collisions. In its report and accompanying order, the commission said that:

For practical reasons costs associated with crossing safety improvements should be borne by public funds as users of the crossing plus the fact that it is increasing highway traffic that is the controlling element in accident exposure at these crossings.

The Commission also said that:

In the past it was the railroad’s responsibility for the protection of the public at grade crossings. This responsibility has now shifted. Now it is the highway, not the railroad, and the motor vehicle, not the train which creates the hazard and must be primarily responsible for its removal. Railroads were in operation before the problem presented itself and if the increasing seriousness is a result of the increasing development of highways for public use, why should not the cost of grade crossing protection be assessed to the public?

The Commission found that:

Highway users are the principal recipients of the benefits following from rail-highway grade separations and from special protection at highway-rail grade crossings. For this reason, the cost of installing and maintaining such separations and protective devices is a public responsibility and should be financed with public funds the same as highway traffic devices.²²

During the 1970s, the public assumed more responsibility for financing crossing safety improvements. FHWA legislation in 1973 provided categorical safety funds for the elimination or alleviation of hazards at highway-rail grade crossings.²³ These funds were continued in subsequent acts in 1976, 1978, 1980, and 1982. The Surface Transportation Act of 1987 continued the categorical funding and established Section 130 of Title 23 of the United States Code, giving the Federal-Aid Rail-Highway Grade Crossing Safety Program permanent status under the law for the first time.²⁴

ISTEA required that 10 percent of a state’s funding under its STP apportionment be set aside for safety improvements and that a proportionate amount of these funds be used for safety improvements at highway-rail grade crossings. ISTEA also made certain types of improvements at railroad grade crossings, including signs, crossing signals, highway lighting (illumination), and pavement markings, eligible for 100-percent federal funding.²⁵

2. Government Agency Responsibility and Involvement

Today, an understanding exists that because a highway-rail crossing involves the intersection of two transportation modes, one public and the other private, its safe and efficient operation requires strict cooperation and coordination of the involved agencies and organizations. Public agencies having oversight and/or program responsibility at the intersection include the following:

At the federal level, six agencies within U.S. DOT and two agencies outside U.S. DOT have specific safety-related roles with respect to highway-rail grade crossings:

•    Federal Highway Administration (FHWA).

•    Federal Railroad Administration (FRA).

•    National Highway Traffic Safety Administration (NHTSA).

•    Federal Motor Carrier Safety Administration (FMCSA).

•    Federal Transit Administration (FTA).

•    Pipeline and Hazardous Materials Safety Administration (PHMSA).

•    National Transportation Safety Board (NTSB).

•    Surface Transportation Board (STB).

Also at the federal level, NTSB investigates significant transportation collisions and issues findings and recommendations on safety. Finally, although it does not have a direct role in safety, STB has general oversight of the railroads.

At the state level:

•    State highway departments.

•    State departments of transportation.

•    State regulatory agencies (usually called public service commissions or public utility commissions).

•    State highway safety agencies.

•    State departments of public safety (state police or highway patrol).

At the local level:

•    State highway department field maintenance organizations.

•    County or township road departments.

•    City street departments or public works agencies.

•    County or local law enforcement agencies.

Each of these involvements is described below.

U.S. DOT seeks to ensure that a viable and safe national transportation system is maintained to transport people and goods while making efficient use of national resources. Six agencies within U.S. DOT— FHWA, FRA, NHTSA, FTA, FMCSA, and PHMSA— actively participate in crossing safety programs.

FHWA. FHWA administers federally-funded programs, several of which are available for crossing improvements. In addition to the funds specifically set aside by ISTEA for categorical crossing programs, funds from the National Highway System program and the Bridge Replacement program may be utilized at highway-rail crossings. FHWA apportions funds to the states according to legislated formulae and in the amounts authorized by Congress for each program. It establishes procedures by which the states obligate the funds to specific projects and oversees the overall implementation of the federally-funded programs.

FHWA establishes standards for traffic control devices and systems at crossings and publishes them in the Manual on Uniform Traffic Control Devices (MUTCD).²⁶ FHWA has also adopted various design criteria and guidelines developed by the American Association of State Highway and Transportation Officials and other organizations for use on federal-aid construction and reconstruction projects. It approves state-developed design directives and design criteria for resurfacing, restoration, and rehabilitation projects and other activities. FHWA provides technical assistance to states and local agencies through the distribution of state-of-the-art publications, training classes, and the activities of state Local Technical Assistance Program centers.

FHWA conducts research to support the above activities, and research conducted by the states is often funded using Federal-Aid State Planning and Research funds. Typical research topics include traffic control devices, roadside safety, collision causation, program management tools, and collision countermeasures. All of FHWA’s crossing research is coordinated with FRA and, in many cases, FRA contributes financially to the projects. FHWA promotes the maintenance of individual state grade crossing inventories and the updating of the national inventory database.

FRA. FRA maintains the national Railroad Accident/ Incident Reporting System that contains information reported by the railroads on all crossing collisions. FRA also serves as custodian of the National Highway-Rail Crossing Inventory that contains the physical and operating characteristics of each crossing. The information is submitted and updated voluntarily by the railroads and the states. FRA works with other agencies and organizations in overseeing the submission of the inventory data to assure accurate and timely information. FRA also prepares, publishes, and distributes reports summarizing collision and inventory data and makes the data available on the Internet.

FRA conducts field investigations of selected railroad collisions including crossing collisions. FRA investigates complaints by the public pertaining to crossings and makes recommendations to the industry as appropriate.

FRA conducts research to identify solutions to crossing problems, primarily from a railroad perspective. Typical research involves program management tools, train-borne warning devices, car and locomotive reflectorization, and track circuitry improvements. Research is coordinated with FHWA and, in some cases, FHWA contributes financially. Both FHWA and FRA have field offices located throughout the United States that collaborate with state agencies and the individual railroads, respectively, on a day-to-day basis. They ensure that policies and regulations are effectively implemented and provide feedback to headquarters regarding needs realized at the field level. FHWA has a division office in each state.

FRA also sponsors a considerable amount of research into railroad and crossing safety issues. A significant portion of this research is carried out by the John A. Volpe National Transportation Systems Center in Cambridge, Massachusetts. Other research is performed through the National Cooperative Highway Research Program, administered by the Transportation Research Board.

NHTSA. NHTSA is involved in the crossing program on a limited basis. It maintains the Fatal Accident Reporting System (FARS), a database containing information on all fatal highway collisions. NHTSA coordinates with FRA and FHWA in providing information in FARS that is pertinent to crossings. NHTSA will also fund educational programs and selective law enforcement programs at crossings through state highway safety offices.

FMCSA. FMCSA was established as a separate administration within U.S. DOT on January 1, 2000, pursuant to the Motor Carrier Safety Improvement Act of 1999. The primary mission of FMCSA is to reduce crashes, injuries, and fatalities involving large trucks and buses. FMCSA is committed to increasing grade crossing safety messages to the freight and passenger motor carrier industry as well as to its safety oversight and enforcement partners. FMCSA will try to encourage states to use their Motor Carrier Safety Assistance Program contacts to distribute grade crossing safety materials focused on motor carrier needs and issues at crossings. U.S. DOT also will work with FMCSA to develop informational packages for firms just starting out in the motor carrier industry.

FTA. FTA is one of 10 modal administrations within U.S. DOT. It provides financial assistance to develop new transit systems and improve, maintain, and operate existing systems. Public transit systems include buses, subways, light rail, commuter rail, monorail, passenger ferry boats, trolleys, inclined railways, and people movers. FTA publishes an annual Safety Management Information System report that compiles and analyzes transit safety and security statistics reported through FTA’s National Transit Database. Safety data include highway-rail grade crossing collisions.

PHMSA. PHMSA was created under the Norman Y. Mineta Research and Special Programs Improvement Act (P.L. 108-426) of 2004. President George W. Bush signed the legislation into law on November 30, 2004. The purpose of the act was to provide U.S. DOT a more focused research organization and establish a separate operating administration for pipeline safety and hazardous materials transportation safety operations. In addition, the act presented U.S. DOT an opportunity to establish model practices in the area of government budget and information practices in support of the President’s Management Agenda initiatives.

PHMSA is the federal agency charged with the safe and secure movement of almost 1 million daily shipments of hazardous materials by all modes of transportation. The agency also oversees the U.S. pipeline infrastructure, which accounts for 64 percent of the energy commodities consumed in the United States.

NTSB. NTSB provides a comprehensive review of the safety aspects of all transportation systems. Through special analyses and collision investigations, it identifies specific safety problems and recommends associated remedies that are presented as recommendations to specific agencies and organizations. A set of NTSB recommendations led to the development of overweight/oversize vehicle movement guidelines and pilot car training materials by the Specialized Carriers and Rigging Association, FHWA, and the Commercial Vehicle Safety Alliance.

STB. STB was created in the Interstate Commerce Commission Termination Act of 1995 and is the successor agency to the Interstate Commerce Commission. Congress charged the economic regulatory agency with the fundamental missions of resolving railroad rate and service disputes and reviewing proposed railroad mergers. STB is decisionally independent, although it is administratively affiliated with U.S. DOT.

STB serves as both an adjudicatory and a regulatory body. The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction, and line abandonments); certain trucking company, moving van, and non-contiguous ocean shipping company rate matters; certain inter-city passenger bus company structure, financial, and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission. STB staff is divided into the following offices:

• The Office of Compliance and Enforcement monitors rail operations throughout the United States and enforces regulations over rail and certain non-rail common carriers in the United States. This office also collects and makes available tariffs from non-contiguous domestic water carriers.

•    The Office of Congressional and Public Services provides the outreach arm. It works with members of Congress, the public, and the media to answer questions and provide information about STB’s procedures and actions and, more generally, about transportation regulation.

•    The Office of Economics, Environmental Analysis and Administration houses several functions. In addition to handling administrative matters such as personnel and budget, this office also houses two sections: the Section of Environmental Analysis, which is responsible for undertaking environmental reviews of proposed STB actions in accordance with the National Environmental Policy Act and other environmental laws and making environmental recommendations to the STB, and the Section of Economics, which analyzes rate cases, conducts economic and financial analyses of the railroad industry, and audits Class I railroads.

•    The Office of Proceedings researches and prepares draft decisions.

•    The Office of General Counsel provides legal advice to STB and defends agency actions that are challenged in court.

State and local level. Jurisdiction over highway-rail grade crossings resides primarily with the states. Within some states, responsibility is assigned to a regulatory agency referred to as a public service commission, a public utilities commission, or similar designation. In other states, the authority is divided among the public administrative agencies of the state, county, or city having jurisdiction over the respective highway and street systems. State highway and transportation agencies are responsible for the implementation of a program that is broad enough to involve any public crossing within the state. Table 6 indicates the state agencies responsible for public and private crossings and whether their jurisdiction is regulatory or administrative.

States are involved in other areas of crossing safety besides jurisdictional responsibility for administering crossings and programs for improvement projects and maintenance. States, along with railroads, are participating in Operation Lifesaver programs, designed to improve safety at crossings and on and around railroad tracks and facilities through public education regarding the hazards of crossings, the promotion of engineering improvements, and encouraging the enforcement of traffic laws at crossings. Individual state and railroad programs are coordinated at the national level by Operation Lifesaver, Inc., a non-profit corporation. More information on Operation Lifesaver is included in Chapter X, Supporting Programs.

Table 6. State and Local Government Jurisdictional Authorities Concerned with Crossings

Legend

Source: Railroad-Highway Grade Crossing Handbook, Second Edition. Washington, DC: U.S. Department of Transportation, Federal Highway Administration, 1986.

Some states also conduct highway-rail grade crossing research utilizing Highway Planning and Research funds made available through the Highway Trust Fund and the Highway Safety Act of 1973, Public Law 93-87, 87 Stat. 250 of FHWA. Other studies may be performed in house, on a contractual basis, or through universities and are financed through regular state highway funding.

State and local law enforcement agencies are responsible for the enforcement of traffic laws at crossings. Local government bodies are responsible for ordinances governing traffic laws and operational matters relating to crossings.

The historical shifting of responsibility for safety at crossings from the railroads to the public and the increasing availability of federal funds have led to more and more obligations being placed on state and local agencies. This shift culminated with the inclusion of Part VIII, “Traffic Control Systems for Highway-Rail Grade Crossings,” in the 1978 edition of MUTCD.²⁷ Part VIII consolidated certain information that had been scattered throughout MUTCD and also superseded the Association of American Railroads (AAR) bulletins covering crossing signalization that had been issued by AAR Committee D. FHWA has also issued regulations specifying criteria for the selection of traffic control devices at highway-rail grade crossings.

The highway agency having jurisdiction at the crossing is the only entity that can legally control traffic. Even though the railroads retain the responsibility for the installation and maintenance of crossbuck signs at “passive” crossings and for the design, construction, operation, and maintenance of railroad crossing signals, state transportation and regulatory agencies have the responsibility to assure that the standards set forth in MUTCD and elsewhere in federal regulations are followed. The street or highway agency is also responsible for the installation and maintenance of all traffic control devices on the approaches to the crossing; for the design, construction, operation, and maintenance of highway traffic signals that may be interconnected with the grade crossing signals; and for the installation and maintenance of certain passive signs at the crossing, such as STOP signs or “Do Not Stop on Tracks” signs.

FRA has proposed a rule to prohibit railroads from unilaterally selecting the type of grade crossing traffic control systems to be installed at public crossings. The railroads would be required to provide information to the states and to cooperate with them in the selection and design of these systems, but the final responsibility for selection of active devices would be shifted to the public agency.²⁸ At the time of this writing, a final determination regarding the proposed rule had not been made.

Although the railroads retain responsibility for the construction, reconstruction, and maintenance of the track structure and the riding surface at the highway-rail intersection, their obligation for the roadway usually ends within a few inches of the outside ends of the ties that support the rails and the crossing surface. The street or highway agency has responsibility for the design, construction, and maintenance of the roadway approaches to the crossing, even though these approaches may lie within the railroad’s right of way.²⁹

3. Railroads

Railroads also work with local governments to alleviate operational and safety concerns at highway-rail grade crossings. For example, switching operations or locations for train crew changes can often be adjusted to avoid blocking crossings or unnecessarily actuating crossing signals. Railroads conduct some research for the purpose of identifying and applying new technology and furthering new concepts regarding crossing safety and operations.

AAR has been active in crossing programs and has established a State-Rail Programs Division within its Operations and Maintenance Department. This division provides information to Congress and U.S. DOT to assist in the administration and establishment of crossing programs. Railroad interests and concerns regarding crossing programs are typically coordinated through the AAR office. The State-Rail Programs Division has appointed a railroad employee in each state to serve as the AAR state representative on crossing safety matters. A list of state representatives is available from AAR.

Other railroad-related companies and suppliers also participate in crossing safety programs. The signal suppliers and manufacturers of crossing surface systems provide guidance for the selection of a specific device or crossing surface. In addition, these companies are actively conducting research to improve their products.

D. Legal Considerations Regarding Highway-Rail Grade Crossings*

* Includes previously unpublished materials provided by Ray Lewis, WVDOT, 2006.

1. Background

Highway and railroad engineers and employees are becoming increasingly involved in matters that were previously of interest only to attorneys. Today, it is incumbent upon staffs of state highway departments, local transportation agencies, railroads, and transit operators to become aware and keep abreast of legal issues in general and the legal elements surrounding their design, maintenance, and operational practices in particular.

This discussion of legal considerations in the administration and management of highway-rail grade crossings is a very basic discussion of an increasingly complex subject. It is not meant to interpret the law or to establish guidelines. It is intended only to alert transportation agencies and rail operators to the possible consequences of failure to maintain and safeguard the highway-rail grade crossing. The particular legal aspects of a specific action or legal problem should be discussed with an attorney.

Until recently, government entities were generally immune from lawsuits on the theory of “sovereign immunity” derived from English common law. Under the sovereign immunity doctrine, a government entity can be sued only if it consents to the suit in advance. Over the past 25 to 35 years, this situation has changed dramatically. Sovereign immunity has been eroded through the actions of the courts and legislatures and now survives in some form in less than one-third of the states. Consequently, many state highway agencies have become more vulnerable to lawsuits for damages resulting from collisions, including highway-rail crossing collisions.

Even though many states had some form of sovereign immunity, this protection frequently did not extend to local government entities and agencies.

Because many states may now be sued for negligence on the part of officers and employees, new emphasis has been placed on the legal responsibility of parties involved in the design of grade crossings and the selection and implementation of crossing safety improvements. This is especially true as state agencies become more responsible for determining which crossings are to be upgraded and determining the type of traffic control devices to be installed.

The state has a duty to correct a dangerous condition when the agency has actual or “constructive” notice of the hazard. The notice requirement does not apply when the condition is the result of the state or agency’s own negligence. For example, a state is not required to have actual notice of faulty construction, maintenance, or repair of its highways because the state is expected to know of its own action, in other words, constructive notice. Constructive notice is knowledge imputed by law, usually after an injury has occurred. However, if the danger did not arise as a consequence of active negligence (such as faulty construction), the agency has a duty to make repairs once it has actual notice of the defect.

Most courts hold that the state or other agency must have had notice of the defect or hazard for a sufficient time “to afford them a reasonable opportunity to repair the condition or take precautions against the danger.” Statutes may require that the agency have notice of the defect for a specified period of time. If, for example, the notice period is five days and the collision was caused by a defect that originated early on the day of the collision, the statutory notice period would not be satisfied and the agency would not have had an opportunity to effect repairs.

On the other hand, the notice may be satisfied where the condition has existed for such a time and is of such a nature that the agency should have discovered the condition by reasonable diligence, particularly where there is no statutorily specified time. In such instance, the notice is said to be constructive, and the agency’s knowledge of the condition is said to be implied.

In deciding whether the agency had notice, the court may consider whether the defect was latent and, thus, difficult to discover. That is, the court will consider the nature of the defect, its location and duration, the extent and use of the highway, and whether the defect could be readily and instantly perceived. Routine inspection and correction procedures are important in light of the trend by courts to allow less and less time before finding constructive notice.

To understand the legal responsibilities of highway agencies and railroads, it is necessary to understand the basic principles and terminology of tort law.

A tort, in legal terminology, is a civil wrong other than a breach of contract for which a court will provide a remedy in the form of monetary damages. Three basic elements are involved in any tort action:

•    A legal duty exists between the parties.

•    One of the parties violated or breached that duty.

•    Damage occurred to the other party as a result of the breach of duty.

Torts can be either intentional (such as assault and battery, false imprisonment, trespass, or theft) or unintentional (negligence). The primary concern at grade crossings is allegations of negligence.

Liability for a tort means the legal obligation to pay monetary damages to the person who was injured or damaged. More than one person may be liable for damages arising from the same incident. In the case of negligent conduct by an employee, both the employee and the employer may be liable.

Negligence can be defined as the failure to do something that a “reasonable and prudent” person would ordinarily do or the doing of something that a “reasonable and prudent” person would not do. Negligent conduct creates a risk for others to whom are owed a duty of exercising care.

The reasonable person is a criterion used to set the standard of care in judging conduct. In effect, this test of negligence represents the “failure to use ordinary care” and most often is used in determining liability. In the context of this handbook, engineers, railroads, or public agencies may be found negligent if their conduct does not measure up to that of a hypothetical reasonable, prudent, and careful engineer, railroad, or agency under similar circumstances.

Contributory negligence refers to conduct that falls below the standard of care that a person, such as a driver, is legally required to exercise for his own safety, and this failure is a contributing cause to the injury or damage he or she has suffered. Until recently, in most states, a finding of contributory negligence by the court would bar a plaintiff from recovering any damages even if the defendant’s negligence had been established and was the primary cause of the accident. Contributory negligence as a bar to recovery is being gradually eroded in the United States by the doctrine of “comparative negligence.”

Comparative negligence is a rule of law adopted by many states whereby the negligence of all parties is compared, and recovery is permitted despite the contributory negligence of the plaintiff. However, the plaintiff’s damages are usually decreased in proportion to his or her own negligence.

Duty in tort law is an obligation requiring persons to conform to a certain standard of conduct for the protection of others against unreasonable risks. Negligence is a breach of duty to exercise reasonable care owed to those persons to whom the duty applies. In this context, a highway agency owes a duty to all travelers on the highway to avoid creating unnecessary risks for those travelers and to meet the standard of care imposed upon that agency.

The standard of care may be established by a multitude of factors. As a minimum, all persons are required to avoid the creation of unnecessary risks, where feasible. In addition, statutes and regulations governing conduct are also components of the standard of care against which conduct is judged.

Finally and, perhaps most important, the accepted standards and practices of a profession, trade, or industry define the standard of care by which conduct is judged. Included in the definition of “accepted standards and practices” are MUTCD and similar standards.³⁰ The American Railway Engineering and Maintenance-of-Way Association (AREMA) also promulgates recommended practices pertaining to railroads in its Manual of Railway Engineering and the Communication and Signals Manual. These manuals are not a standard but a compendium of recommended practices to provide railway engineers with guidelines for the construction of railroads.

To place the above concepts in perspective, it is necessary to recognize the following concepts of tort liability:

•    Negligence is the failure to exercise reasonable care.

•    Court decisions in tort cases are based on the concept of the existence of a “reasonable and prudent” person exercising “ordinary care;” that is, “reasonable care” that would be exercised by a prudent person under the same or similar circumstances.

•    The three elements necessary in every tort claim are: (1) existence of a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) the occurrence of damage or injury that is the reasonably foreseeable result of that breach of duty.

In effect, this means that the plaintiff (the one bringing the suit) must prove the following if he or she is to win a judgment:

•    The defendant (agency or railroad) had a legal duty to use reasonable care toward the plaintiff (the injured party).

•    The defendant breached that duty (fell below the standard of care required, thus committing an act of negligence).

•    The damages (injuries, property damage, pain and suffering, loss of income, etc.) suffered by the plaintiff were caused by the breach (defendant’s negligence) and were the foreseeable result of that breach. That is, but for the negligence of the defendant, the plaintiff would not have suffered damages.

•    Finally, depending on whether the particular state follows the contributory or comparative negligence doctrine, the plaintiff, to recover all of the damages suffered, must not have contributed to that negligence (contributory) or must have been less at fault than the agency or railroad (comparative).

To understand the concept of “legal duty,” it is necessary to recognize the distinction between discretionary and ministerial (nondiscretionary) acts. Many states that no longer retain their sovereign immunity have enacted Tort Claims Acts, which prescribe the conditions under which the state, its agencies, and its employees may be held accountable. Most of these include a limited exemption from liability for negligence in the performance (or in the nonperformance) of so-called discretionary activities.

The term “discretionary” refers to the power and duty to make an informed choice among alternatives. It requires the consideration of these alternatives and the exercise of independent and professional judgment in arriving at a decision or choosing a course of action. On the other hand, ministerial duties involve clearly defined tasks performed with minimum leeway as to personal judgment and not requiring any evaluation or weighing of alternatives. Consequently, they are nondiscretionary.

In modern law, the distinctions between discretionary and ministerial functions are of great importance in judging tort claims against governmental entities. In general, a public organization or its employees are not liable for negligence in the performance of discretionary activities. However, the courts are constantly revising the law in these areas, and the classification of a particular governmental activity as either discretionary or ministerial is subject to shifting legal interpretations.

It should be recognized that the limited exemption from liability that has been afforded to discretionary activities in no way provides absolute protection from legal liability. If discretion is abused or exercised recklessly or unjustly, courts may move in and substitute their own discretion for that of the agency.

The courts are fairly uniform in holding that the design of highways is a discretionary function because it involves high-level planning activities and the evaluation of policies, alternatives, and other factors. This is supported by court decisions that hold that design functions are quasi-legislative in character and must be protected from second-guessing by the courts, which are inexpert at making such decisions. Design immunity statutes represent a further effort by legislatures to immunize public employees and bodies from liability arising out of negligence or errors in a plan or design that was duly approved under current standards of reasonable safety.

The courts consider two factors in determining whether a state has taken reasonable care in giving the public adequate warning at a highway-rail grade crossing, summarized as follows:

•    In light of the history of accidents and/or level of traffic at the particular crossing, was a collision reasonably foreseeable? If so,

•    Was the state reasonable in its choice of traffic control devices to alert the public of the foreseeable risk?

Liability for collisions occurring at grade crossings is governed by the law of negligence. The law imposes the duty to exercise reasonable care to avoid injury to persons using the highway upon public agencies and railroads. Agencies and railroads are under no duty to provide absolute safety.

Potential liability in crossing collisions may create reluctance on the part of states, local agencies, railroads, and suppliers to initiate new technology or procedures that may lead to charges of negligence. Experimentation and in-service trials of new devices are restricted both by potential litigation and by the contractual and insurance requirements and negotiations involved.

The scheduling of improvement projects has become a significant issue in recent court cases involving crossing collisions. The application of administrative rules and procedures to ensure the expeditious installation of safety improvements based upon the principle of the alleviation of the highest potential hazard is a major factor in these cases.

It should be obvious that it is more logical to expend public funds for sound management practices and proper highway maintenance than for the settlement of claims or the payment of adverse judgments. Consequently, it would seem appropriate to review maintenance activities and reporting procedures to limit exposure to tort liability. It would also seem helpful to assure that all employees involved in such activities are well informed of the legal implications of their functions.

2. Tort Liability and Standards

It has been suggested that railroads and public agencies could significantly reduce tort liability suits involving traffic control devices by implementing four basic steps:

•    Know the laws relating to traffic control devices.

•    Conduct and maintain an inventory of traffic control devices.

•    Replace devices at the end of their effective lives.

•    Apply approved traffic control devices according to specifications and standards.

The area of tort law changes rapidly with court decisions (“case law”) and the enactment and amendment of statutes. It is not the purpose of this handbook to serve as a legal reference or to substitute for the knowledge, skills, experience, and judgment of attorneys. Several recent legal issues should be of interest to railroaders and public employees and are expected to have major impacts on tort liability.

Easterwood. The case of CSX Transportation v. Easterwood raised the issue of federal preemption. In Easterwood, the Supreme Court ruled that train speeds could not be litigated if the speed of the train was within the regulations for the class of track as promulgated by FRA under the Railroad Safety Act of 1970 and that the type of traffic control devices at the crossing could not be litigated if they had been approved by the secretary (of transportation). This generally means that active and/or passive traffic control devices at the crossing should have been selected by a diagnostic team or in accordance with similar procedures, and that federal funds were used to install or upgrade them.³¹

Shanklin. The case of Norfolk Southern Railway v. Shanklin involved an action for damages against a railroad due to its alleged failure to maintain adequate warning devices at a grade crossing in western Tennessee. After her husband was killed in a crossing collision, the respondent brought suit against the petitioner, the operator of the train involved in the collision. The respondent claimed that the warning signs posted at the crossing, which had been installed using federal funds, were insufficient to warn motorists of the danger posed by passing trains. Justice O’Connor delivered the opinion of the Supreme Court in that the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49 USC §20101 et seq., in conjunction with FHWA’s regulation addressing the adequacy of warning devices installed with federal funds, preempts state tort actions such as respondent’s.

23 USC §409. The development, operation, and administration of any safety program depends on collection and analysis of data and on the free and unfettered interchange of information between parties. 23 USC §409 was first included in the Surface Transportation Assistance Act of 1987, strengthened by ISTEA, and strengthened again by the National Highway System Designation Act of 1995.³² This section currently reads:

Notwithstanding any other provisions of law, reports, surveys, schedules, lists or data compiled or collected for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144 or 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data.

Currently, a considerable amount of case law still is being written by the appellate courts concerning the breadth of this restriction. At the time of this writing, the exact scope of the materials that can be excluded is not well defined. It should be noted that this statute may affect the duty of public agencies to release studies and other materials under Freedom of Information Acts.

Design exceptions. All new construction or reconstruction projects should be designed in accordance with accepted standards and criteria, including MUTCD,³³ the latest edition of A Policy for Geometric Design of Highways and Streets (the “Green Book”),³⁴ AREMA recommended practices, and state standards and design policies. All efforts should be made to adhere to the specified criteria. However, under unusual conditions, it may be necessary to use values different from or less than the values that have been established. These departures and the reasons for them should be carefully documented, and the documentation should be retained in the permanent project file by both the public entity and the railroad.³⁵

Architects and builders’ statutes. Most state codes include “architect and builders’ statutes,” which bar recovery for deficiencies in planning, design, or construction supervision of improvements to real property after a certain time period has elapsed. These ordinarily are in the form of “statutes of repose” rather than “statutes of limitation.” A statute of limitation ordinarily begins running on the date of an injury; a statute of repose forecloses a cause of action after a stated time period regardless of when an injury occurs. Generally, the statute of repose begins running for design on the date the plans are completed and signed by the engineer or architect; it begins running for construction and construction supervision on the date the work is completed and accepted by the owner. The courts have generally been willing to extend the protections extended by these statutes of repose to construction performed by public agencies and their contractors, including highway improvements.³⁶

E. References

Accident/Incident Bulletin. Washington, DC: Federal Railroad Administration (FRA), published annually.

Alternative Solutions to Railroad Impacts on Communities, Final Report. Minnesota Department of Transportation and North Dakota State Highway Department, December 1981.

Amos, Charles L. “Railroad Crossings.” Better Roads, Vol. 49, No. 9 (September 1979) and Vol. 49, No. 10 (October 1979).

Annual Report on Highway Safety Improvement Programs. Washington, DC: Federal Highway Administration (FHWA), published annually.

Federal-Aid Policy Guide. Washington, DC: FHWA, updated periodically.

Federal Highway Administration Survey of Region and Division Offices, unpublished, 1984.

Gertler, Judith B. A Study of State Programs for Rail-Highway Grade Crossing Improvements. Washington, DC: FRA, Report FRA-OPPD-78-7, June 1978.

Highway Statistics. Washington, DC: FHWA, published annually.

Maintenance Cost Study of Railroad-Highway Grade Crossing Warning Systems. Washington, DC: Association of American Railroads (AAR), October 1982.

Prevention of Rail-Highway Grade Crossing Accidents Involving Railway Trains and Motor Vehicles. Washington, DC: Interstate Commerce Commission, November 1962.

Rail-Highway Crossing Accident Incident and Inventory Bulletin. Washington, DC: FRA, published annually.

Railroad Facts. Washington, DC: AAR, September 1983 and October 1984.

Railroad-Highway Safety, Part I: A Comprehensive Statement of the Problem, A Report to Congress. Washington, DC: U.S. Department of Transportation (U.S. DOT), November 1971.

Railroad-Highway Safety, Part II: Recommendations for Resolving the Problem, A Report to Congress. Washington, DC: U.S. DOT, August 1972.

Report on the Unit Coal Train Community Impact Conference. Washington, DC: U.S. DOT, August 1979.

Schercinger, John M. 1984 Grade Crossing Statistics Show Continued Safety Improvement. Washington, DC: AAR, September 1984.

Schoppert, David W. and Dan W. Hoyt. Factors Influencing Safety at Highway-Rail Grade Crossings. Washington, DC: Highway Research Board, National Cooperative Highway Research Program Report 50, 1968.

Traffic Control Devices Handbook. Washington, DC: Institute of Transportation Engineers, 2001.

Footnotes

1 Federal Highway Administration (FHWA) Website (www.fhwa.dot.gov).

2 Bureau of Transportation Statistics (BTS) Website (www.bts.gov).

3 Highway Crossing Accident/Incident and Inventory Bulletin (No.6 Calendar Year 1983). Washington, DC: Federal Railroad Administration (FRA), 1984.

4 BTS Website (www.bts.gov).

5 Prevention of Rail-Highway Grade Crossing Accidents Involving Railway Trains and Motor Vehicles. Washington, DC: Interstate Commerce Commission (ICC), November 1962.

6  Highway Safety Act of 1970, §§ 201-205, Public Law No. 91-605, 84 Stat. 1742.

7  Railroad Safety Act of 1970, Public Law No. 91-458, 84 Stat. 971.

8  Railroad-Highway Safety, Part I: A Comprehensive Statement of the Problem, A Report to Congress. Washington, DC: U.S. Department of Transportation (U.S. DOT), November 1971.

9  FHWA. Policy and Procedure Memorandum 21-16, “Highway Safety Improvement Program,” May 3, 1972.

10  FHWA. Instructional Memorandum 21-5-72, “Elimination of Hazards of Railway-Highway Crossings—Railroad Liability,” October 27, 1972.

11 FHWA Notice. “Elimination of Hazards, Railroad-Highway Grade Crossings—Improvement of Crossing Surface,” March 14, 1973.

12  Highway Safety Act of 1973, Public Law 93-87, 87 Stat. 250.

13  Ibid.

14 Surface Transportation Assistance Act of 1987, Public Law 100-17, 101 Stat. 171.

15  Intermodal Surface Transportation Efficiency Act of 1991, Public Law 102-240.

16  Ibid.

17  FHWA Fact Sheets on Highway Provisions (www.fhwa.dot.gov/safetealu/factsheets/hsip.htm).

18  FHWA Fact Sheets on Highway Provisions (www.fhwa.dot.gov/safetealu/factsheets/railcrossings.htm).

19 Safetrans System Corporation. “Rail-Highway Grade Crossing Safety: A Continuing Need for Federal Funding,” February 1995.

20 Railroad-Highway Safety, Part I: A Comprehensive Statement of the Problem, A Report to Congress. Washington, DC: U.S. DOT, November 1971.

21 Ibid.

22 Prevention of Rail-Highway Grade Crossing Accidents Involving Railway Trains and Motor Vehicles. Washington, DC: ICC, November 1962.

23  Highway Safety Act of 1973, Public Law 93-87, 87 Stat. 250.

24  Surface Transportation Assistance Act of 1987, Public Law 100-17, 101 Stat. 171.

25  Intermodal Surface Transportation Efficiency Act of 1991, Public Law 102-240.

26 Manual on Uniform Traffic Control Devices, 2003 Edition. Washington, DC: FHWA, 2003.

27 Manual on Uniform Traffic Control Devices for Streets and Highways, 1978 Edition. Washington, DC: U.S. DOT, FHWA, 1978.

28  “Selection and Installation of Railroad Grade Crossing Warning Systems.” FRA Docket No. RSGC-6; Notice No. 1, Federal Register, March 2, 1995, pp. 11647–11654.

29 Highway-Rail Crossing Surfaces. Washington, DC: National Cooperative Highway Research Program Synthesis of Practice 250, 1997.

30 Manual on Uniform Traffic Control Devices, 2003 Edition. Washington, DC: FHWA, 2003.

31  CSX Transportation, Inc. v. Easterwood (1993, US) 123 L. Ed. 2d 387, 113 S Ct 1732, 93 CDOS 2889, 93 Daily Journal DAR 4989, 7 FLW Fed S 172.

32  National Highway System Designation Act of 1995, Public Law 104-59, 109 Stat. 588.

33  Manual on Uniform Traffic Control Devices, 2003 Edition. Washington, DC: FHWA, 2003.

34  A Policy on Geometric Design of Highways and Streets, 2004 Edition. Washington, DC: American Association of State Highway and Transportation Officials, 2004.

35  WVDOT, Roadway Design Division, Design Directive 605, “NHS Design Exception Policy,” April 3, 1995.

36  Gibson v. W. Va. Department of Highways; 406 S. E. 2nd 440 (W. VA. 1991).