Father killed by train while trying to save dogs. Is this wrongful death?
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Father killed by train while trying to save dogs. Is this wrongful death?
My father was killed by a train by chasing his dogs onto tracks while walking them in an adjacent ravine. The dogs got on to the tracks through large holes in the track fence and all three were hit and killed by the train. The fences were in disrepair in multiple locations. The fence holes are also commonly used to cross the tracks to get from the ravine to a residential neighborhood.Is this considered wrongful death?
Asked on April 29, 2009 under Accident Law, Massachusetts
Answers:
MD, Member, California Bar / FreeAdvice Contributing Attorney
Answered 14 years ago | Contributor
My condolences to you and your family.
This is one wherein my first impression is NO. He knowingly went onto train tracks. He was an adult. He could have simply not gone -- and saving dogs wouldn't have the same impact as saving a human being.
In terms of fence holes -- disrepair in such circumstances are usually for considerations like a child entering an attractive nuisance, or someone walking in an area wherein they fall in somewhere because of disrepair.
Now, questions to ask a lawyer in your state in a consultation (a good route to go) would be the idea of whether or not the train killing your father was unforeseeable? In other words, the train accident wasn't negligence sufficient to overcome your father's actions. However, it may be worth your while to discuss the matter with an attorney in your state in a consultation involving a detail by detail accounting -- why? Because facts may reveal or case law may show that a possible wrongful death action may be something to consider. Try www.attorneypages.com and reviewing the following below:
Federal law may have specific requirements of maintenance at train tracks/train stops/crossing guards. Common carriers like trains have usually strict liability for accidents, however, that is usually during the voyage (i.e., for passengers) not for those outside the train (drivers, walkers). At that point, it may be reasonable care.
Section 85. Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff’s damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff’s negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.
The violation of a criminal statute, ordinance or regulation by a plaintiff which contributed to said injury, death or damage, shall be considered as evidence of negligence of that plaintiff, but the violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery.
The defense of assumption of risk is hereby abolished in all actions hereunder.
The burden of alleging and proving negligence which serves to diminish a plaintiff’s damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.
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