Radio Rules – They Should Be Life Savers

Although January 29, 1997, began as a normal workday for 49 year old Patrick Smith of Waseca, Minnesota, it ended without him. He went to work that day on his regular job running trains from Blue Earth, Minnesota to Mason City, Iowa for Union Pacific Railroad. While switching cars in the Mason City Yard, Patrick Smith was struck by an engine and killed as he was walking across a yard lead track to throw a switch. He is survived by a wife and five boys, including two teenagers still at home.

The railroad contended that his death was simply a matter of Mr. Smith breaking a number of cardinal railroad rules and was further caused by Mr. Smith inexplicably calling for his engines to move down the track that he was crossing. To the railroad it was an open and shut case of a conductor violating the rules for which they claimed there was no railroad responsibility whatsoever.

As soon as we examined the initial facts, my staff and I knew that the railroad explanation simply did not add up. Patrick Smith had been a faithful and longtime employee with an excellent safety record. Moreover, it seemed ludicrous to imagine that he would call for an engine to come down the tracks and then simply forget about it in a matter of a few moments. As the facts unfolded, it developed that there were serious radio communication problems in the yard. The primary problem was the failure of the railroad to observe federally mandated radio rules on clear and accurate transmissions at all times.

The FRA rules require that communication by radio identify the individual who is communicating and use “over and out” as needed in order to establish clearly that a particular communication has been completed. If that is not done, no movements are to take place and the transmission must be treated as if not sent. It was undisputed that the last and only transmission heard was “Come ahead 21.” Under the rules, this is an incomplete radio transmission. Our investigation found that the real cause of this accident was railroad management’s rush to move cars and its failure to insist that employees follow the FRA rules because it would slow work down.

The railroad argued that even if the transmission was technically incomplete, it had to have been Mr. Smith himself who was the one who made the incomplete radio transmission since it was a two person crew; he was the conductor and “21” was his job number. What we discovered however, was that the transmission might not have been made by Patrick Smith, but rather could have been sent by someone in the yard trying to be of help. The rule of “identification” is in place precisely to avoid this kind of confusion.

The Court, after reviewing the legal briefs and listening to the extensive legal arguments by both sides ruled:

That “come ahead 21,” as the sole transmission, was incomplete and therefore under the Federal Radio Rules the railroad must not allow any movement to occur. The Court in its Order made it clear that the railroad’s violation of a Federal Safety statute is negligence per se. Finally the Court ordered, consistent with ß53 of the FELA that contributory negligence is also barred when the cause of death is due to a disregard of a statute enacted for the safety of employees. 45 U.S.C. 53 (Supp. 1997) and 49 CFR 220.31, 220.33, 220.35 and 220.45.

With this finding, the railroad, which had been intractable in its denial of responsibility, now faced a trial where the jury would be told that the railroad was 100 percent liable as a matter of law and the jury’s only charge would be to determine the amount of damages. Suddenly, the railroad wanted to talk. Extensive negotiations resulted in a seven figure net settlement to the Smiths, protecting Mrs. Smith and her family for all the years to come.

The lessons of this particular case are at least two-fold. First, safety rules and regulations mandated by the Federal Government do have a purpose and should be followed. Too often, however, we see that railroads want it both ways . . . they don’t enforce these safety rules because they want to expedite the movement, but when something happens they try to use the same rules against the injured employee. In this case we were able to turn the tables by proving to the Court the railroad was not following the rules.

You too should make every effort to follow the safety rules. However, we are all aware of the harassment and intimidation you face as you deal with management that is more concerned with profits than safety. If you are subject to any harassment or intimidation you should report that to your union officials. They in turn can file formal complaints with your employer and with the Federal Railroad Administration. You should be sure to note as precisely as possible the words that any supervisor might use in telling you to follow unsafe practices, and, if there are witnesses, you should get their names, addresses and phone numbers.

The second lesson is that violations of safety rules can prevent the railroad from using a claim of contributory negligence against the victim. This is a powerful weapon on behalf of injured clients who through informed legal representation can hold railroads accountable for their actions. It became very clear in this case that the law worked as it should.

If you are injured on the job and are confronted with railroad accusations that it is all your fault, do not assume that is true. As in the case of Patrick Smith, we were able to show it was 100 percent the railroad’s fault even though the initial facts seemed to suggest huge contributory negligence on the part of Mr. Smith.

It was a distinct honor to represent Maureen and the boys. They are a wonderful family of which Pat, Sr., looking down from above, has a right to be proud.

The FELA lawyers of Yaeger & Jungbauer Barristers, PLC invite you to contact their office for further discussion of this topic. This article is designed for general information only and should be considered neither formal legal advice nor the formation of a lawyer client relationship.