By Marcell Owens, Owner, McCray Law Firm, PLLC · Houston, Texas
A railroad crossing accident in Texas is not a FELA case, and starting from the wrong statute is the fastest way to waste the only months that matter.
The Federal Employers’ Liability Act governs the claim of a railroad employee against the railroad. A motorist, a passenger in a vehicle, a cyclist, or a pedestrian struck at a grade crossing is not an employee. That claim runs on ordinary negligence principles, on the condition of the crossing as property, and on a layer of federal railroad safety regulation that shapes what can be argued.
Same railroad, same tracks, entirely different case. If you were hurt on duty, our guide to FELA claims for Texas railroad workers is the one you need instead.
At McCray Law Firm we make this distinction the first thing we settle in a crossing case, because most of the material available online blends the two frameworks together and ends up useless to both audiences.
What a railroad crossing accident claim in Texas is built on
A crossing case is a negligence case with a regulatory overlay. In practice it asks a series of concrete questions, and each one points at a different set of records.
Was the crossing itself unreasonably dangerous? Warning devices — passive signs versus active gates, lights, and bells. Whether the devices that existed were functioning. Sight lines, and whether vegetation, embankments, parked equipment, or stored railcars obstructed the approach. The condition of the crossing surface. The angle of the crossing and the roadway approach grade.
Was the train operated reasonably? Speed relative to the applicable limit and the conditions. Whether the horn or bell was sounded, and when. Whether the crew saw or should have seen the hazard and what they did. Braking. Crew hours and fatigue.
Did the railroad follow its own rules? This one carries specific legal weight, for reasons covered below. Railroads operate under plans, rules, and standards created pursuant to federal regulation, and a failure to comply with the railroad’s own such rules occupies a distinct place in the preemption analysis.
Was a road authority involved? Crossings sit at the intersection of railroad property and public roadway. A city, county, or the state may bear responsibility for signage, roadway markings, approach design, or maintenance on its side of the line. Claims against governmental units carry their own framework, including notice requirements under the Texas Tort Claims Act in Chapter 101 of the Texas Civil Practice and Remedies Code, and those requirements can demand action far sooner than any general deadline. If a governmental entity may share responsibility, treat the timeline as short until a lawyer confirms otherwise.
A crossing case is rarely about one failure. It is usually about the combination.
Federal preemption: the obstacle, and the way through it
This is the part of a crossing case that most surprises families, and it is where cases are won or lost before the facts are ever argued.
Federal law establishes a policy of national uniformity in railroad safety regulation. Under 49 U.S.C. § 20106(a), laws, regulations, and orders related to railroad safety are to be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary prescribes a regulation or issues an order covering the subject matter. A State may also adopt or continue a more stringent requirement when it is necessary to eliminate or reduce an essentially local safety hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce.
Read alone, that framework sounds like a wall. It is not one, because Congress addressed damages actions specifically.
Under 49 U.S.C. § 20106(b), nothing in the section preempts an action under State law seeking damages for personal injury, death, or property damage alleging that a party failed to comply with a Federal standard of care established by a regulation or order issued by the Secretary; failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by the Secretary; or failed to comply with a State law, regulation, or order that is not incompatible with the preemption rules of the section.
That provision is the practical center of a modern crossing case. Preemption does not close the door. It defines which door you go through.
So the question in a crossing case is usually not “is this preempted.” It is: which federal standard, or which of the railroad’s own rules created under federal regulation, was not followed. Those are documentary questions with documentary answers.
The preemption framework has substantial case law behind it, and this article addresses the statutory text rather than characterizing the state of that case law. How § 20106 applies to a specific crossing, a specific device, and a specific set of facts requires legal analysis, not a general rule.
Why the railroad’s own rules matter so much
Section 20106(b) preserves an action alleging that a party failed to comply with its own plan, rule, or standard created pursuant to a federal regulation or order.
That sentence changes where a case looks for its evidence. Alongside the federal standards themselves, the railroad’s internal documents — its operating rules, bulletins, special instructions, maintenance and inspection standards, and vegetation control programs — become directly relevant, because a failure to follow them sits inside the category Congress expressly preserved.
Those documents are held by the railroad. They come out through preservation demands and discovery, or they do not come out at all.
Which is the whole argument for early counsel in a crossing case.
What disappears, and how fast
Crossing cases are evidence cases, and the evidence has a short natural life.
Vegetation gets cut, which is good for public safety and eliminates the proof of an obstructed sight line. Malfunctioning signals get repaired. Crossing surfaces get resurfaced. Locomotive event recorder data and any inward or outward facing camera footage cycles. Stored railcars that blocked a view get moved within hours. Skid marks and debris are gone with the next rain. And the crew, who can describe exactly what they saw and when they saw it, transfers or retires.
Meanwhile the railroad’s own investigation is completed in the first days.
Photographs of the crossing taken the same day, from the driver’s actual approach, are among the most valuable evidence in the entire case. They are also the easiest to lose, because nobody takes them once the scene is cleared.
What to preserve and document
What a family can do:
- Photograph and video the crossing from the direction of approach, at the same time of day, showing sight lines, vegetation, signs, signals, gates, the crossing surface, and any obstruction — before anything is trimmed, repaired, or moved
- Record the exact crossing location, including the milepost or the U.S. DOT crossing inventory number posted at the site
- Note the date, time, weather, and lighting
- Identify every witness with personal contact information, including other drivers stopped at the crossing
- Obtain the law enforcement crash report and the names of the responding agencies
- Keep the vehicle in its post-collision condition, and do not authorize repair or salvage before it has been inspected
- Preserve the complete medical record from the first evaluation forward, and report every symptom
- Keep anything received from any insurer, and sign nothing
What a preservation demand reaches:
- Locomotive event recorder data and camera footage
- Dispatch records and recorded radio communications
- Signal and warning device inspection, testing, maintenance, and malfunction records for that crossing
- Crossing surface and track maintenance records
- Vegetation control records for the approach
- Crew assignment and hours-of-service records
- The railroad’s operating rules, bulletins, and special instructions in effect that day
- Prior collision and complaint history at the same crossing — often the most consequential category of all
- Records held by the city, county, or state regarding signage, roadway markings, and approach design
Your job is to protect what you already have. Our job is to reach the rest before someone else’s maintenance schedule does.
Comparative fault, and being honest about it
Crossing cases attract a hard defense: the driver should have stopped, looked, and yielded to a train that had the right of way. Expect it, and expect it to be pressed with the crash report and any statement the driver gave.
Texas applies a proportionate responsibility framework in Chapter 33 of the Texas Civil Practice and Remedies Code, under which a claimant’s own share of responsibility can reduce and, past a threshold, bar recovery. The specific operation of that framework should be confirmed against the current statute for any particular case rather than assumed from a general description.
This is the practical reason not to give a recorded statement to any insurer before legal advice. A reasonable-sounding sentence about what you did or did not see becomes the centerpiece of a comparative fault argument months later.
Notice also how different this is from the employee side. Under 45 U.S.C. § 53, a railroad employee’s contributory negligence reduces damages proportionally and is eliminated entirely where the carrier violated a statute enacted for the safety of employees. A motorist at a crossing has no equivalent statutory protection. The employee framework is more forgiving on this exact point, which is one more reason the two case types cannot be analyzed with the same material — the full comparison is in our guide to FELA versus workers’ compensation.
When a crossing collision causes a death
Crossing collisions are frequently fatal, and a death changes the structure of the claim rather than just its size.
Because the person killed was not a railroad employee, the claim is not under FELA. It runs under Texas law: a wrongful death claim under Sections 71.002 through 71.011 of the Texas Civil Practice and Remedies Code, belonging to the surviving spouse, children, and parents under Section 71.004, and a separate survival action under Section 71.021 belonging to the estate.
Section 71.004 is a closed class. Siblings and grandparents are not included. Our guides to who can file a wrongful death claim in Texas, wrongful death versus a survival action, and the wrongful death statute of limitations in Texas cover that structure in full, and they are the correct framework for a crossing death — not the FELA beneficiary tiers that apply when the person killed was on duty.
Key takeaways
- A crossing claim is not a FELA claim. FELA governs employees. A motorist or pedestrian is on negligence and federal crossing regulation instead.
- Preemption does not end the case; it channels it. Under 49 U.S.C. § 20106(b), actions alleging failure to comply with a federal standard of care, with the railroad’s own federally created plan or rule, or with a compatible state law are preserved.
- The railroad’s internal rules are evidence. Section 20106(b) expressly preserves claims based on a failure to follow the party’s own plan, rule, or standard created under federal regulation.
- Sight lines and vegetation are the case, and they vanish. Same-day photographs from the driver’s approach are irreplaceable.
- Prior collision history at the same crossing is often the most valuable single category of discovery.
- A road authority may share responsibility, and claims against governmental units carry notice requirements under Chapter 101 that can be far shorter than a general deadline.
- Comparative fault will be pressed hard, and a motorist has no equivalent to the employee protection in 45 U.S.C. § 53.
Frequently Asked Questions
Is a railroad crossing accident a FELA case?
No, unless the injured person was a railroad employee working at the time. FELA at 45 U.S.C. §§ 51-60 governs employee claims against the railroad. A motorist, passenger, cyclist, or pedestrian struck at a crossing brings a state law claim shaped by federal railroad safety regulation, which is a different analysis with different deadlines and different beneficiaries in a death case.
Does federal law prevent me from suing the railroad?
Not by itself. Federal law establishes national uniformity in railroad safety regulation under 49 U.S.C. § 20106(a), but § 20106(b) expressly preserves actions seeking damages for personal injury, death, or property damage that allege a failure to comply with a federal standard of care, a failure to comply with the party’s own plan, rule, or standard created under a federal regulation or order, or a failure to comply with a compatible state law. How that framework applies to a specific crossing requires legal analysis of the facts and the records.
The crossing only had a crossbuck sign, no gates. Is that the railroad’s fault?
It is one of the central questions in the case, and it is not answered by the absence of gates alone. What matters is which federal standards and which of the railroad’s own federally created rules applied to that crossing, what the sight lines and traffic conditions were, whether a road authority had responsibility for the approach, and what the prior incident history at that location shows. That is a records-driven analysis.
Who else besides the railroad can be responsible?
Potentially the city, county, or state responsible for the roadway, signage, markings, or approach design; a contractor that performed work at or near the crossing; a property owner whose vegetation or stored material obstructed the view; and, in a multi-vehicle collision, another driver. Claims against governmental units carry notice requirements under Chapter 101 of the Texas Civil Practice and Remedies Code that can require action quickly, so this needs to be identified early.
The railroad says the driver failed to yield. Does that end the claim?
Not necessarily. Texas applies a proportionate responsibility framework in Chapter 33 of the Civil Practice and Remedies Code, under which a claimant’s share of responsibility can reduce and, past a threshold, bar recovery. Whether and how it applies depends on the evidence about the crossing, the warning devices, the sight lines, and the train’s operation — which is precisely why a recorded statement should not be given before legal advice.
What is the most important thing to do right now?
Photograph the crossing from the driver’s actual line of approach, at the same time of day, before any vegetation is trimmed, any signal is repaired, or any railcar is moved. Then get legal advice so preservation demands reach the recorder data, the signal maintenance records, and the prior incident history at that crossing.
How long do I have to file?
Personal injury claims in Texas are generally subject to a two-year period under Section 16.003(a) of the Texas Civil Practice and Remedies Code, and a death action generally within two years of the date of death under Section 16.003(b). If a governmental unit is involved, the practical timeline is usually much shorter because of Chapter 101 notice requirements. Because a missed deadline permanently ends a claim, confirm your dates with a licensed attorney rather than estimating.
My family member was killed at a crossing. Who can bring the claim?
Because the person was not a railroad employee, Texas law applies rather than FELA. Section 71.004 limits a wrongful death claim to the exclusive benefit of the surviving spouse, children, and parents, and the estate has a separate survival action under Section 71.021. Siblings and grandparents are not in the wrongful death class. Our guide to who can file a wrongful death claim in Texas covers the class and its exclusions.
This article is for informational purposes only and does not constitute legal advice, and reading it does not create an attorney-client relationship. Deadlines and outcomes depend on the specific facts of each case, and railroad crossing claims involve an interaction between state law and federal railroad safety regulation that requires case-specific analysis. McCray Law Firm, PLLC is licensed to practice in Texas and is admitted in the U.S. District Court for the Southern District of Texas. If you believe you may have a claim, speak with a licensed attorney about your situation before any deadline passes.
About the author. Marcell Owens is the owner of McCray Law Firm, PLLC in Houston, Texas. He earned his J.D. cum laude from Texas Southern University’s Thurgood Marshall School of Law and has been licensed to practice in Texas since 2015. He is admitted in Texas and in the U.S. District Court for the Southern District of Texas, and was included in the Top 40 Under 40 National Black Trial Lawyers. He works with a team of attorneys handling personal injury and wrongful death matters across Texas.
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