This is one of the major reasons "dash cams" were put on locomotives, to absolve the carrier of responsibility for "trespasser" and grade crossing accidents. The vast majority of the time, anyone within the approximate 10 ft. width of a train when one shows up is at fault for being there, not the railroad. If the lead units on all of the trains that went by there that morning were so equipped, it should pretty conclusively show whether or not CSX should have known there were people on or around the tracks there before the fatal accident.

In this case, however, a video showing the trespassers would not absolve CSX from blame. It would incriminate them. And a video showing the right of way free of trespassers would absolve them from blame.

In this case, what might mitigate responsibility for CSX would be video of the trains passing the location, audio of the radio communications between the train crew and dispatcher reporting unauthorized persons on the track and the dispatcher radioing a warning to trains approaching the area to approach the location expecting to find unauthorized persons on or near the right of way. Audio or reports of communications with the special agent on duty regarding unauthorized persons on the right of way might also mitigate their responsibility if it can be shown that the railroad was aware of the presence of the trespassers and took reasonable action to address the matter.

Does anyone know if CSX records all dispatcher/crew radio communications? I know they record phone calls to dispatchers, the occasional "beep" on the line was always there when I called them. If they don't record radio traffic, do dispatchers at least keep a daily log of communications? I know there is a system log of "unusual occurrences". It used to be accessible by any T&E employee.

I agree that this evidence might mitigate CSX responsibility if it shows that they took reasonable action to address the matter. But that is exactly what the complaint alleges they did not do. It says that CSX saw the film crew on the property, and therefore should have sent a representative to remove the film crew and their equipment from the tracks; and warn the third train of the dangerous situation they were headed for.

So any evidence such as videos, communications about seeing people on the property, or even testimony to that fact will all reinforce the allegation that CSX knew about the danger and did nothing about it.

If it can be proved that CSX crews saw the film crew ON the right-of-way and told the dispatcher; there should be a record made of a call to the local police department.

At least UPRR (I think all the Class Ones have a similar policy) crews are obligated to call the dispatcher whenever they see a trespasser; and dispatcher is supposed to call law enforcement to remove said trespasser. If CSX did that, then the dropped ball is on law enforcement, not CSX.

The police department might say they were on their way, but did not make it before the fatal train arrived.

Stopping that train would have been the best course of action, if CSX saw a group of people on the right of way with a bunch of electronic equipment and a hospital bed.

Hyacinth Bucket (pronounced Bookay): "Richard, watch out for that film crew."
Richard Bucket (formerly pronounced Bucket): "But, they're over on the paper
company's property."
Hyacinth: "They might put that metal bed on our railroad tracks, dear. You'd better tell the dispatcher to warn all trains."

Counter-claim:

CSX did not have reason to believe that these people would attempt to enter the bridge, nor did they have reason to believe that they would be fouling the tracks period if the crew was visibly paying attention to staying clear of the first two trains.

CSX real estate department would have known about the film crews request, but they said no, absolutely not. Normally, it should have ended there, CSX had no reason to believe that the film crew would disobey the instructions to not enter the right-of-way. You shouldn't have to call the dispatcher and issue bulletins that are vague (be on the lookout for so-and-so that we told not to enter the right-of-way, sometime this week during daylight hours) every time someone is denied access to the right-of-way.

Was CSX's alleged statement that they allegedly
didn't give permission to be on the tracks:
in response to an alleged request for permission?
or due to an alleged lack of any such request?

The act of notifying the police department in a timely fashion would generally be considered reasonable action. The legal duty of a property owner to a trespasser is generally less than that to an invitee, especially if reasonable efforts are taken to inform trespassers that they are entering private property illegally (specifically posting and fencing where appropriate).

I know that NS required crews to report unauthorized persons on the right of way. Dispatch is then supposed to notify the special agent or local law enforcement to remove the unauthorized persons.

As for radio communications, they are recorded. That way, in instances like this, the railroad and investigators can determine what communications took place and any factor that communications may have had in the incident. The recording equipment is wayside based and will pick up any transmissions on the programmed frequencies. I believe that the technology currently available has the capability to time stamp the transmissions, so there should be concrete proof as to exactly when each transmission was sent.

Are you asking if CSX simply said the film company did not have their permission after learning that the film company trespassed?

What I read in the news was that, prior to the accident, CSX denied a request for permission for the film company to work on CSX property, and that CSX has an email that they sent to the film company to verify that they denied permission.

Correct me if I'm wrong but I was under the impression that you can refuse to testify using the 5th as long as the potentiality of a criminal prosecution exists. Is the D.A. declining to prosecute sufficient? I would expect not, unless that disposition was made official in some way, e.g. a deal for immunity.

To say nothing of the possibility of being prosecuted by another branch of government, e.g. by regulators, at the Federal level, or the IRS.

Of course everything has a trade-off, and in civil court (unlike criminal) they are allowed to judge you by your refusal to testify.

Fifth Amendment protection can only be invoked in criminal prosecution. The Constitution protects the individual against the state-not another private party. The county attorney may decline to prosecute if they determine that prosecution is not in the best interest of the public.

You can invoke Fifth Amendment protection in a civil lawsuit. However, unlike in a criminal inquiry, it may carry consequences, or require review by a judge to determine if the invocation is valid. Of course, your jurisdiction and mileage may vary. Consult compotent legal counsel.