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When the fox guards the henhouse

A National Transportation Safety Board Investigator stands on Wednesday, March 8, 2017 at the Main Street railroad crossing in Biloxi, Miss. On Tuesday, March 7, a CSX train struck a casino tour bus stuck on the tracks, killing four passengers.
A National Transportation Safety Board Investigator stands on Wednesday, March 8, 2017 at the Main Street railroad crossing in Biloxi, Miss. On Tuesday, March 7, a CSX train struck a casino tour bus stuck on the tracks, killing four passengers. jcfitzhugh@sunherald.com

The nation’s railroads practice one of private industry’s more deft maneuvers: the do-it-yourself investigation.

It’s a practice that often hinders local and state law enforcement agencies when they try to find out whether train crews are at fault in railroad-crossing accidents.

When a train and car collide at a crossing, local law enforcement, and railroad supervisors and claim agents, conduct independent investigations.

The locals treat it as they would an ordinary traffic accident: They interview witnesses, talk to the principals, take reports and issue traffic citations if necessary. They also ask members of the train crew basic questions about the train and equipment and note whether the crossing signals, if active, worked.

But the railroad usually winds up with a prime piece of evidence — the “black box.”

The black box, or event recorder, contains information often in dispute between the railroad and people hit by trains: the train’s speed, whether the train crew braked or blew the horn before the accident, and other components of the train’s operation.

“The local police cannot even take a train engineer or anyone on that crew and give them a breathalyzer test or blood alcohol test or anything like that. They’re not subject to any of the things that a normal motorist has to go through,” said Kenneth Heathington, a professor emeritus of civil engineering at the University of Tennessee and an expert on railroad issues.

“And no one gets access to the black box except the railroad.”

Why? Officials for CSX Transportation, which owns 74 miles of track on the Coast, say the recorders are theirs. Only federal authorities, railroad officials say, have the right to demand the recorders.

Critics say that claim becomes superfluous after an accident.

“To overcome any suspicions, why don’t we have regulations that say this black box is available to the public?” Heathington said. “That’s what we do for the airlines.”

The elusive ‘box’

Event recorders on trains are similar in function to those on commercial airliners, though usually simpler. An airplane’s black box includes recorders that register altitude, plane speed and a host of other data. It also tapes talk in the plane’s cabin and among pilots and air-traffic controllers.

The most advanced recorders on trains record only time, distance, speed, direction of travel, and how quickly a train accelerates and decelerates and whether the train’s horn is blowing.

Some trains carry only eight-track tapes, which on playback reveal only train speed.

The industry has no regulations requiring railroads to be consistent in their choice of recorders, nor does the federal government require railroads to equip their trains with the devices. Most railroads do anyway, using them internally to make sure engineers and conductors are doing their jobs.

The recorder’s position on a train varies slightly, but it usually is mounted in the lead locomotive near the front cab steps, in front of the engineer’s control stand. Railroad supervisors, but not crew members, can get to it with a key that unlocks an access plate on the surface of the engine.

“If an engineer could get at it, he could taint the process,” said Raymond Brown, CSX’s lawyer on the Coast.

Of course, the precautions that prevent engineers from tampering with the telltale recorders also keep local law enforcement from getting to them at the scene of an accident. That’s if police officers even know the recorder is there, and many don’t.

“I’ve never heard that mentioned,” Rodney McGilvary, chief of patrol for the Biloxi Police Department, said in May.

“We’ve never had it offered to us ... We take a statement from the conductor and make that part of our report.”

The reasoning behind the limited access to the recorders raises another question: If engineers can’t be trusted to leave the recorders alone, can their supervisors be trusted not to tamper with them when an outside agency wants the recorder as evidence?

“That’s been argued, and it’s a logical argument,” Brown said. The railroad’s response to it, he said: No law requires it to use recorders, and because recorders are railroad property, it reserves the right to use it the way it wants.

Even if local law enforcement got their hands on the recorder or any other evidence, Brown said, any subsequent action would have to come from the federal government.

“If a federal agency asked for the tape,” he said, “the railroad would give them the tape.”

Shortcomings

The arguments sound good in theory. In practice, the feds rarely get the recorders or the data they carry.

Sometimes, no one gets it.

On May 18, 1990, Brenda Tennort of Biloxi was killed when a train hit her car. She was on her way to work when she drove over the crossing at Magnolia Street. She apparently never saw the train, eastbound toward Mobile.

More than a year later, the train’s engineer, S.E. Havard of Mobile, told Brown that police at the scene had “asked if there was a speed tape on the engine, and I told them I did not know.” The train left Biloxi and continued to Mobile.

Once there, Havard said, he called the rail yard supervisor to pull the recorder if there was one. For reasons no one remembers, the tape was never pulled. It cycled over on the way to the next yard.

Whatever clues the recorder could have revealed about the circumstances of Brenda Tennort’s death were erased forever.

“It was failure on up the line,” said Matt Lyons, an Ocean Springs attorney who represented Tennort’s widower in a suit against CSX. “That’s critical information in any accident.”

The Tennort case is an exception, says CSX. After an accident, the recorder is pulled and analyzed “the overwhelming majority of the time,” Brown said. When it’s not, “it’s not for lack of want-to, it’s just somebody dropped the ball.”

The feds’ short arm

The National Transportation Safety Board and Federal Railroad Administration are the federal agencies that investigate railroad-crossing accidents.

The NTSB is an independent agency that determines the probable cause of transportation accidents and recommends safety improvements to governments and businesses; the FRA is the branch of the federal Department of Transportation that oversees the nation’s railroads.

But in reality, the FRA has only limited authority to investigate accidents, and the NTSB can’t possibly investigate each of the 5,000 or so crossing accidents that happen every year in the United States. In fact, the agency investigated only 63 of the 4,892 crossing accidents in the country in 1993, the last year for which official figures are available.

Extraordinary accidents — when several people are killed, or if the wreck gets heavy media coverage, or both — gets the safety board’s attention. In that case, NTSB will send a team from Washington, D.C., or from one of its regional offices in Atlanta, Chicago and Los Angeles to investigate, Jim Dunn, chief of regional investigations for NTSB, said in July.

But that leaves many one- or two-death accidents that the NTSB doesn’t investigate. Said agency spokeswoman Julie Beal: “We just don’t have the manpower.”

Railroads are required by law to call the FRA’s toll-free, 24-hour telephone number and immediately report an accident that kills a railroad employee or passenger, or kills or injures five or more people.

FRA policy requires the agency to investigate those accidents, or “when it appears that an investigation would substantially serve to promote railroad safety.”

Like the NTSB, the FRA has to choose what accidents it decides to investigate, and to what extent.

The agency did not have a count of how many accidents it investigated in 1993. But it’s a little better equipped to investigate than the NTSB. The FRA has 364 safety inspectors nationwide, plus state inspectors in each state.

“Every time we have a fatality, we’re very concerned,” said FRA spokesman David Bolger. “But it’s very difficult to investigate all these grade-crossing tragedies.”

Mystery

Despite the limits placed on police officers in railroad investigations, most police don’t press the issue.

For instance, a police officer can test a train crew member for drugs or alcohol only if he has obvious reason to believe the member is drunk or on drugs — if he slurs his speech, staggers, looks glassy-eyed.

Brown said railroads have sued, and won against, local law enforcement officers who test a crew for drugs or alcohol for the sole reason that the crew was in an accident with a car.

The courts in those cases have ruled that the local officers were going beyond their authority.

Likewise, railroad officials say, it’s not the railroad’s responsibility to make sure recorders are used as evidence in an accident investigation. To use it that way runs counter to its main purpose, to keep engineers honest.

“It is true that the tapes and event recorders can be used post-accident,” Brown said. “But I’ve not had a case yet, when we had an event recorder, where that recorder didn’t show exactly what the crew said it did.

“Every time we present it, the plaintiffs’ lawyers get real quiet.”

All the more reason, Heathington said, to equip all trains with uniform recorders, and to make them accessible to law enforcement down the line.

“Nowadays, you could put a black box in every engine that could tell you anything about anything, and it’d be minor relative to the cost of an engine,” he said.

“I think it ought to be made immediately public, and any police department ought to be able to pull up, pull open the engine, grab the tape and say, ‘Hey, let’s take a look at this.’ ”

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