Union Pacific liable for pedestrian’s injuries? | SierraSun.com

Union Pacific liable for pedestrian’s injuries?

Jim Porter
Law Review

Here is a case recently decided by the Third District Court of Appeal out of Sacramento ” our district. It involves a pedestrian hit by a passing Union Pacific train. You decide whether U.P. is responsible.

At 8:30 in the evening, Steven Christoff was walking along Roseville Road. Because the sidewalk narrowed as the road crossed Arcade Creek, Christoff decided to use the nearby Union Pacific railroad bridge to cross the creek.

The railroad bridge had a metal grid area on the side of the bridge which had a 1-foot-9-inch wide walkway. The walkway was for employees to work on the railroad, not for pedestrians. In fact, Christoff had to step over metal struts that held up the attached walkway.

There was no signage prohibiting pedestrians, but the “walkway” was clearly not meant for Roseville Road pedestrians.

There was testimony that standard chain-link fences are not effective against trespassing, and tamper-proof fencing would cost about $1 million per mile and would endanger people in the event of derailment. There was little explanation of why U.P. did not have a “no trespassing” sign other than the obvious danger presented.

While Christoff was on the railroad bridge, a freight train approached from the opposite direction at a speed of approximately 50 mph. Under the speed limit. The engineer sounded the horn. Christoff saw the train’s lights and heard the horn, but did not take any evasive action.

Christoff said when he heard the train whistle, he waved, because when he used to live near railroad tracks the train conductors would beep the whistle and he would wave. The court noted that he had time to wave but not enough time to hold onto the railing.

As the train passed it either struck him or threw him to the ground and he was badly injured. But he lived to tell the story ” and hire a lawyer.

Christoff claimed that U.P. did not warn him of the dangers of walking on the narrow passageway next to the tracks on the bridge. The Court of Appeal noted that “any reasonable person would know that standing within a few feet of a high speed freight train is dangerous.” As the court said, a busy railroad track is itself a warning to anyone “possessed of ordinary intelligence” that it is not safe to walk on or near the tracks, and indicates the possibility of being struck by a passing train. Hard to argue with that.

The Sacramento Court of Appeal agreed with the trial court: “defendant railroad was not negligent; did not have a duty to warn of open and obvious dangers on its property; it acted with reasonable care to prevent injury to trespassers and its conduct was not a legal cause of plaintiff’s injuries.” That is, U.P.’s failure to warn of the obvious danger did not cause Christoff’s injuries.

His stupidity did.

Jim Porter is an attorney with Porter· Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site, http://www.portersimon.com.