By Marcell Owens, Owner, McCray Law Firm, PLLC · Houston, Texas
A railroad worker injury claim in Texas is not won by remembering what happened. It is won by the record, and the railroad starts building its version of that record within the hour.
A railroad worker injury claim is a federal negligence action under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 through 60. Because it is a negligence claim rather than a benefits process, fault has to be proven, and fault is proven with documents, data, and witnesses. There is no schedule that pays automatically. There is an evidentiary contest, and it begins immediately whether or not the injured worker is participating in it.
At McCray Law Firm we tell rail workers the uncomfortable truth up front. On the day you are hurt, the railroad has a trained claim agent, a supervisor writing a report, and access to every piece of equipment and every data system involved. You have a hospital wristband.
That asymmetry is normal. It is also fixable, and the window for fixing it is measured in days.
If you are still working out why your situation looks nothing like a benefits claim, start with our comparison of FELA versus workers’ compensation. This article assumes you already know you are in a lawsuit.
Federal law protects your right to tell what happened
Start here, because this provision is the most useful thing an injured rail worker can know and almost no one tells them about it.
Under 45 U.S.C. § 60, it is unlawful for any common carrier, or any officer, agent, or employee of a carrier, to use any contract, rule, regulation, or device to prevent employees from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee. Any such contract, rule, regulation, or device is void.
In plain terms: the railroad cannot lawfully use a policy, a rule, or an agreement to stop you or your coworkers from voluntarily providing the facts about an injury to an interested party.
That matters in two directions. It protects your own account. And it protects the coworker who saw what happened and is quietly worried about what talking will cost them.
Do not read this as legal advice about your specific employment situation. Section 60 is a statutory prohibition, not a guarantee that nothing uncomfortable will follow, and how it applies to a particular rule or conversation is a question for a lawyer looking at your facts. But the existence of the provision is worth knowing, because most injured workers assume the opposite.
What the claim agent is actually doing
A railroad claim agent may be courteous, prompt, and genuinely sympathetic. They are also not a benefits administrator, because there are no benefits to administer. In a FELA case, the railroad is the defendant, and the claim agent works for the defendant.
What a recorded statement in the first days is well suited to produce: an account given while you are medicated, incomplete, and unaware of what will later matter. An estimate of speed or distance you will be held to. A description of your own actions offered before anyone has looked at whether a safety rule or a piece of equipment failed. An understatement of symptoms that have not fully emerged.
None of that requires bad faith on anyone’s part. It is simply what happens when one side is prepared and the other is injured.
Do not give a recorded statement before you have talked to a lawyer. That is the single highest-value decision available in the first week.
Be equally careful with paperwork. Under 45 U.S.C. § 55, any contract, rule, regulation, or device whose purpose is to enable a carrier to exempt itself from FELA liability is void — but the same section allows the carrier to set off against its liability any sum it contributed or paid to insurance, relief benefits, or indemnity for the injury. Payments and documents have consequences even when nothing is labeled a release. Review first.
What to document in the first 72 hours
The list below is what an injured worker can control. Everything else is held by the railroad, and that is what preservation letters are for.
Your own account, written the same day. Date, time, location by milepost or yard track, weather and lighting, the task you were performing, the equipment involved by number, the crew on duty, what you felt and when. Write it while it is fresh, and write it for yourself, not for anyone else.
Photographs and video of everything, immediately. The equipment, the specific component that failed, the ballast or walkway surface, the lighting, the sight lines, the tools you were issued, and the condition of the area before anyone repairs or cleans it. Repairs are good for safety and devastating for proof.
Equipment identifiers. Locomotive and car numbers, the specific handhold, step, coupler, brake, or door involved. A defect claim that cannot identify the unit is a defect claim that goes nowhere.
The names and contact information of every crew member and every witness — including personal phone numbers, not just employee IDs. People transfer, retire, and become unreachable.
Your report, exactly as you submitted it, and a copy of anything you signed or were asked to sign.
Every medical contact, from the first one. The initial evaluation, the emergency visit, every follow-up, every referral, and every symptom you reported. Report all your symptoms, including the ones that seem minor — the ones you leave out on day one become the ones the defense says appeared later for other reasons.
Your work history and earnings records. Pay records, overtime, hours-of-service documentation, seniority, job assignments, and any prior positions relevant to earning capacity.
Anything the railroad gives you or asks of you, in writing, kept.
Your job is to protect what you already have. Our job is to reach what you cannot.
What the railroad holds, and what a preservation letter reaches
This is the material that decides a serious rail injury case, and every item on it can disappear under ordinary policy while everyone is being perfectly reasonable.
- The equipment itself, before it is repaired, rebuilt, or returned to service
- Locomotive event recorder and download data, and any inward or outward facing camera footage
- Dispatch records, radio traffic, and recorded communications
- Track inspection, maintenance, and defect records for the location
- Equipment inspection and repair histories for the specific unit
- Crew assignment records and hours-of-service documentation, which is where fatigue evidence lives
- The railroad’s own incident investigation file, including supervisor reports and internal findings
- Rules, bulletins, and operating instructions in effect that day
- Prior incident reports at the same location, on the same equipment, or involving the same task
- Training records for the crew and for you
Preservation letters cannot be sent backward. That is the whole reason to involve counsel early rather than after treatment ends.
Why a safety standard violation is the first thing we look for
There is a specific reason we go hunting for a violated federal safety requirement before we build anything else.
Under 45 U.S.C. § 53, damages in a FELA case are normally diminished by the jury in proportion to the amount of negligence attributable to the employee. But the same section provides that no employee is held to be guilty of contributory negligence in any case where the violation by the carrier of any statute enacted for the safety of employees contributed to the injury or death.
So establishing a safety statute violation does two things at once. It supports liability, and it can remove the railroad’s best damages argument from the case entirely.
Section 54 works the same way, providing that the employee is not held to have assumed the risk where the carrier violated a statute enacted for the safety of employees.
One concrete example of such a standard: under 49 U.S.C. § 20701, a railroad carrier may use or allow the use of a locomotive only when the locomotive and its parts and appurtenances are in proper condition and safe to operate without unnecessary danger of personal injury, have been inspected as required, and can withstand every test prescribed by the Secretary of Transportation.
That is why the locomotive number matters. That is why the photograph of the specific failed component matters. A general complaint that the equipment was in poor shape is an opinion. A documented condition on an identified unit, measured against a federal standard, is evidence.
Whether any particular standard was violated in your case is a legal and technical question requiring the records and often an expert. It is not something to conclude from a photograph alone.
Injuries that develop over time need a different kind of record
Not every railroad injury happens in a moment. Hearing loss from years of exposure. Repetitive trauma to knees, shoulders, and backs from decades of ballast, ladders, and equipment. Conditions related to substances encountered in service.
These claims are recognized under FELA, and they are also the ones where timing gets complicated. Section 56 requires an action to be commenced within three years from the day the cause of action accrued, and identifying that accrual date for a condition that developed gradually is a genuine legal question rather than an obvious one.
What helps: the complete employment history including every position and location, any exposure or audiometric testing the railroad performed, the equipment and tasks involved across years, medical records showing when symptoms began and when a connection to work was first suggested, and any prior reports or complaints you made.
If your condition built up rather than happened, do not assume the claim is too old. Have the accrual question evaluated.
When the worker does not survive
When a rail injury results in death, the documentation list above still applies, and the family is the one who has to act on it while grieving. Two things change.
First, Section 51 addresses death directly and names its own tiered beneficiaries: the surviving widow or husband and children of the employee; if none, the employee’s parents; if none, the next of kin dependent upon the employee. That structure is not the same as the one Texas law applies to an ordinary wrongful death claim under Section 71.004 of the Texas Civil Practice and Remedies Code, which reaches only the surviving spouse, children, and parents. Families relying on general Texas guidance can reach the wrong conclusion about who has a claim, so our guides to who can file a wrongful death claim in Texas and wrongful death damages in Texas should be read as the state-law comparison rather than the rule for a rail death.
Second, the complete medical record from the injury through the death becomes central, exactly as it does in a state-law survival action. What the worker experienced before dying is a documented question, not a remembered one.
Two statutes reaching the same death. Confirm which list applies to you.
What not to do
- Do not give a recorded statement before talking to a lawyer.
- Do not sign a release, a settlement, or anything you have not had reviewed — Section 55 voids exemption devices, but the setoff provision means documents still carry consequences.
- Do not understate your symptoms to a doctor or in a report to seem tough. That record follows the case.
- Do not post about the incident or your recovery on social media.
- Do not wait for treatment to finish before preserving evidence. Those are unrelated clocks.
- Do not assume the two-year Texas personal injury deadline applies. FELA gives three years under Section 56, and the accrual date is what actually matters.
- Do not conclude a coworker cannot talk to you because of a rule — Section 60 addresses exactly that, and the question deserves legal review rather than assumption.
Key takeaways
- The record decides the case. A FELA claim requires proof of negligence, and negligence is proven with data, documents, and witnesses.
- Section 60 protects the flow of information. It is unlawful for a carrier to use any contract, rule, regulation, or device to prevent employees from voluntarily furnishing facts about an injury to a person in interest.
- The claim agent works for the defendant. No recorded statement before legal advice.
- Identify the equipment specifically. Unit numbers and the failed component turn an impression into evidence.
- A safety statute violation is worth more than liability alone. Under Section 53 it can remove contributory negligence from the case, and Section 54 removes assumption of risk.
- Preservation letters cannot be sent backward. Equipment gets repaired, data cycles, crews transfer.
- Cumulative injuries need employment history, not just a scene photograph, and their accrual date is a legal question.
Frequently Asked Questions
Should I give a statement to the railroad’s claim agent?
Not before speaking with a lawyer. In a FELA case the railroad is the defendant, and the claim agent is gathering information for its defense — not administering a benefits program, because FELA has none. A statement given while you are medicated, incomplete on symptoms, and unaware of what the records will later show is difficult to walk back.
Can the railroad stop my coworkers from telling me what they saw?
Section 60 makes it unlawful for a carrier or its officers, agents, or employees to use any contract, rule, regulation, or device to prevent employees from voluntarily furnishing information about the facts of an injury to a person in interest, and it voids any such device. How that provision applies to a specific rule or conversation is a question for a lawyer, but the statutory protection exists, which is the opposite of what most injured workers assume.
What is the single most important thing to document?
The specific equipment and the specific condition, identified by unit number and photographed before repair. Most railroad injury cases turn on whether a defect or an unsafe condition existed, and that question becomes very hard to answer once the unit is back in service. If you can only do one thing, do that one.
The railroad already fixed the equipment. Is my claim over?
No, but it is harder, which is why preservation matters so much. Inspection and repair records, maintenance histories, prior defect reports, and the accounts of the crew can still establish the condition. This is exactly the material a preservation demand and formal discovery are designed to reach.
How long do I have to bring a railroad worker injury claim?
Section 56 requires a FELA action to be commenced within three years from the day the cause of action accrued. That is longer than the two-year period generally applicable to personal injury claims under Texas law, but the accrual date is the operative question — especially for cumulative conditions. Confirm your specific deadline with a licensed attorney rather than estimating it.
I reported the injury but downplayed it. Does that hurt me?
It creates a record that has to be explained, which is not the same as being fatal. What helps is getting complete and accurate medical documentation from this point forward, and being candid with your lawyer about what the earlier report said. Do not try to fix an early report by revising it on your own.
My hearing loss developed over twenty years. Is it too late?
Not necessarily. Cumulative injuries are recognized under FELA, and the three-year period under Section 56 runs from accrual rather than from your first day of exposure. Determining accrual for a gradually developing condition is a legal question that depends on medical evidence and specific doctrine. Have it evaluated rather than assuming the claim has expired.
What framework applies if I was not on duty?
A different one. FELA governs the claim of a railroad employee against the railroad. A motorist or pedestrian struck at a grade crossing is not an employee, and that claim runs on negligence and federal crossing regulation instead. We cover it in our guide to railroad crossing accidents in Texas, and the employee framework in our guide to FELA claims for Texas railroad workers.
This article is for informational purposes only and does not constitute legal advice, and reading it does not create an attorney-client relationship. FELA is a federal statute, and deadlines and outcomes depend on the specific facts of each case. 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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