Railroad tracks at site of boy's accident lacked fence, despite law

When a 9-year-old boy's feet were severed by a train in St. Paul last month, the railway track he was on was not guarded by a fence, as required by Minnesota law.

St. Paul police and fire authorities say Marshawn Farr-Robinson climbed onto a slow-moving train that was traveling along railway tracks located about a block from the boy's home at Ivy Avenue West and Farrington Street. The tracks belong to Burlington Northern Santa Fe.

Police reports and fire officials say Marshawn fell, and the train amputated both his feet. There were two trains in the area at the time - one belonging to BNSF and another belonging to Canadian Pacific. Which train was actually involved in the incident is still under investigation according to a BNSF spokesperson and police reports. A well-worn path leads to the tracks. The path is considered to be a shortcut between two neighborhoods, despite a sign on the path near the tracks that says "Trespassing on railway property is illegal."

After the incident, people who live in the area expressed concern that the tracks are dangerous and should be blocked by a fence.

While anyone who goes onto private railroad property without permission is considered a trespasser, railroads are required by Minnesota law to "build and maintain good and substantial fences on each side of all lines of its railroad."

Minnesota Statute 219.31 has been on the books for about a century. It was originally written to protect livestock. But over the years, Minnesota courts have said that the law is also intended to protect young children. The issue has come up in more than a half dozen legal cases involving railroads and injuries and deaths on the tracks.

Marshawn's story hits very close to home for Andre Fisher, 32, of Brooklyn Center.

"Kind of eerie to think of it," said Fisher.

In 1991, Fisher was 9 years old, like Marshawn. He recalls leaving a friend's home, walking to the tracks and waiting for the train to go past.

"Next thing I know I was looking at my legs and they was gone," he said.

Fisher lost both his legs when he was hit by a train in an area which is now the Midtown Greenway in Minneapolis. He crossed over the tracks from a path used by many kids as a shortcut to a nearby park. There was no fence to stop them.

Fisher sued the Soo Line Railroad and ultimately settled his case, but not before a district court judge ruled that the railroad didn't follow the fence law. Andre, who is now a father of two boys, ages 12 and 8, believes railroads should do more to keep kids safe.

"I don't see any reason why there shouldn't be a fence around a train track in a residential area, especially when there's houses and a playground," he said.

Minneapolis attorney Bill Sieben represented Fisher in his case against the Soo Line, and argues railroads have a responsibility to help protect children. He believes the statute is absolute, referring to a discussion by Minnesota Supreme Court Justice William Mitchell in a case from the late 1800s. Mitchell described the statute as not just a fence law but as a police regulation designed for the benefit of the public.

"You have a clearly dangerous situation that people, kids in particular, get killed on or at or maimed, as in this particular case. You have a solution - a fence," said Sieben. "These dangerous conditions that we have, particularly in urban areas, almost universally are fenced, whether it's a power transmission line or power plants or industrial plants."

The fence law doesn't spell out enforcement. No state or federal agency is monitoring the extent to which railway tracks are fenced. However, the statute can become pivotal in lawsuits, and in determining who is at fault.

According to the Minnesota Department of Transportation, there are approximately 4,400 miles of freight railroad lines across Minnesota. How much is fenced is unclear. MPR News and KARE 11 contacted five railroads that own tracks in the state and none had an exact answer.

But in an approximately 20-block stretch of track between Victoria Street and Rice Street in the St. Paul neighborhood where Marshawn was injured - all owned by Burlington Northern Santa Fe - there are two other well-worn paths leading to the tracks. The paths are not blocked by a fence, including one path located next to a field and playground.

But some of the track is fenced. At least one section of the track in this particular neighborhood is blocked by a fence in an area where the track lies right beside several houses at Jessamine Avenue and Como Place.

When asked why parts of its track are not fenced, despite the law, BNSF released a statement:

"This is a tragic incident and we continue to keep this young boy and his family in our thoughts. We cannot comment on this particular incident because the investigation is ongoing. Constructing and maintaining fence for the over 4,000 miles of railroad tracks throughout the state, unfortunately, in some cases would still not deter people from entering railroad property. Through public safety education efforts, patrolling, and posting of no trespassing signs, we continue to make the public aware of the need to stay away from railroad tracks to stay safe."

According to the court opinions and legal experts, cases citing Minnesota's railway fence law sometimes turn on whether a fence would have kept the child off the tracks. If he or she would have crossed anyway, by climbing over the fence or tampering with it, the railroad might not be liable. Courts also consider the child's age and ability to appreciate the danger.

A BNSF spokesperson said railroad police increase patrols in areas known to be trouble spots in an effort to keep trespassers away from the track. They ask local police to do the same.

And since the incident involving Marshawn, BNSF says it has also approached St. Paul Public Schools about making a presentation on railroad safety through a national railroad safety education campaign known as Operation Lifesaver.

Marshawn's mother did not agree to an interview with MPR News and KARE 11. Marshawn has been released from the hospital, and has two large casts on his legs, which go past his knees.

According to the Federal Railroad Administration, there were 75 deaths and injuries to trespassers on railroad property in Minnesota from 2007 to 2012.

Here are the responses from other railroads:

Union Pacific: UP issued this statement: "Across our network, each location where we install a fence in an attempt to keep persons off railroad property is considered on a case by case basis. We ask all persons not to trespass on railroad property for their own safety."

Canadian Pacific: A spokesperson for Canadian Pacific said the railroad continues to work together with communities to make sure families understand the dangers. Fencing is one tool CP uses to reduce trespassing. Safety education is another.

Canadian National: No response.

Twin Cities and Western: CEO Mark Wegner said fences won't eliminate the risk completely. Wegner says the TCW railroad puts a great deal of effort into educating the entire community to stay away from the tracks.

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You can see KARE 11's report by clicking here.

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