Today we’re going to cover another danger – an attacker – and how the law can protect workers
This popped up in the news recently when a passenger reportedly pulled a knife on a NJ Transit conductor. Thankfully the incident didn’t result in injuries, but the dangers train workers face from the public is real, and not new. (Railroad Worker's United keeps track of railroaders killed in the line of duty, which you can see here.) I represented another conductor a few years ago on NJT, also North Jersey Coast Line, who was jumped by a passenger. In all cases, it's the carrier’s responsibility to provide reasonable protection against dangers of which it knew or should have known.
This issue came to light this fall when a California court handed down a nearly $6 million verdict in favor of an Amtrak worker who was beat up on the job by gang members. Amtrak tried to pin the fault on him saying he shouldn’t have exited the engine and should have called for help. But the jury found the company was at fault for knowing about the dangers in the area and not providing the engineer with a safe place to work.
This is an important part of FELA, the Federal Employers’ Liability Act, which uniquely protects rail workers. If you work on the rails, you don’t have worker’s comp. Instead, in order for the carrier to be responsible for paying for your injury (including lost wages, pain and suffering, medical expenses) it must be proved that the company was negligent.
That might mean negligent in letting a crumbling walkway go unrepaired or refusing to clean up a dangerous work site. (See how that hurt one worker, and how he stood up for himself, here.) These rights have been challenged over time by carriers, but the courts have stood firm in favor of the workers.
Take this case from 1975 where a worker was shot.
Mr. Burns, a brakeman, prepared the train for arrival at 125th Street by opening the door and trap to the stairs. As was the custom and practice at the time, Burns was standing on the bottom step upon entry into the station. An unknown sniper shot with a rifle, killing Mr. Burns immediately. His wife sued the carrier for her husband’s wrongful death. The case went to trial. The jury struggled to reach a verdict and before one was rendered, the Judge stepped in, saying the carrier should win as a matter of law. The appellate court sent the case back for a new trial because it found that the carrier knew that over the ten months before Mr. Burns was killed, there had been four passenger trains stoned within a three block radius of where the shooting occurred. The court went on to say that in addition to the actual knowledge, the company also had constructive knowledge of the generally dangerous conditions prevailing in the neighborhood in which the fatality transpired. By taking it away from the jury, the Court found that the widow’s rights were violated.
I will give you another example of one of my own cases that went to trial against Metro-North. My client was the engineer of a train that was traveling from Poughkeepsie south. He was operating a train called a Bomb train, which is short for Bombardier. The operating end of the car has a single door separating the cab from the passenger area. FRA regulations require that passengers have access to the barrel doors to get out.
The engineer had left Poughkeepsie and was entering a sharp 60 mph curve with his foot on the deadman’s pedal when a stranger burst in, yelling in a foreign language “Kill, Kill, Kill.”
My client, a Navy veteran, stood up to deal with the intruder and at the same time turned while leaving his foot on the pedal. In so doing, he herniated a disc in his low back. It turned out that the passenger was trying to say Peekskill, thinking he had missed his station stop.
At trial I showed that the carrier should have provided a door to separate the engineer from the riding public, and potential attackers. I showed that other carriers using this equipment did exactly that. But MNRR chose not to. The jury found for my client and after the trial actually wrote to the president of the carrier, asking that better protection be provided.
Here's an excerpt of it.
Guess what? Now, over six years later, the company has done absolutely nothing to change the safety of those engineers.
So this is an example of a case that some lawyers might never see as being railroad negligence. It sounds like an errant passenger and an unfortunate chain of events. But when you know the whole story, you see that the carrier was the one who made this injury a reality. This is why it's essential for injured workers to seek out a FELA lawyer. I wrote a guide to choosing your railroad injury lawyer. Use it to evaluate whoever you're considering hiring.
In the end, the FELA is your only protection against the unsafe work practices that result of in personal injury on the job. Only by understanding what the law does and how it works can you use it to protect you. Opening up to your supervisors about safety issues as you see them is the first step toward avoiding injury. When they don’t or won’t listen, and it results in injury, being forearmed with knowledge will help bring a successful claim. (If you get push back for trying to be safer, then you are confronting a potential whistleblower claim. Click here to see previous blogs on whistleblower issues. )
To learn more about how fellow rail workers have successfully sued their carriers for injuries, download the case study below.