Legally reviewed by Colin X. Fitzgerald - Doran & Murphy, PLLC
Most people know that commercial airplanes carry flight data recorders — the so-called “black boxes” that investigators recover after a crash to reconstruct exactly what happened in the final moments before impact. What far fewer people know is that locomotives carry a nearly identical device, and that the data it captures can be one of the most powerful pieces of evidence in a railroad injury case.
If you were injured in a railroad accident — a derailment, a collision, an emergency brake application that threw you from your seat, any incident involving a moving train — there is a strong likelihood that a detailed electronic record of exactly what the locomotive was doing at the moment of your injury exists somewhere. Preserving that information can be crucial.
What Is a Locomotive Event Recorder?
A locomotive event recorder (LER) — sometimes called a locomotive data recorder or, in newer systems, an end-of-train device data recorder — is an onboard electronic system that continuously logs operational data from the locomotive. Federal Railroad Administration (FRA) regulations require most locomotives in interstate commerce to be equipped with certified event recorders. 49 C.F.R. Part 229, Subpart D.
Depending on the age and model of the locomotive, an event recorder may capture some or all of the following data points, typically recorded at one-second intervals:
- Speed — the locomotive’s actual speed at any given moment
- Throttle position — what notch the engineer had the throttle set to
- Brake applications — when and how hard the brakes were applied, including both automatic and independent brake channels
- Direction of travel
- Horn and bell activations — whether warning signals were sounded and when
- Alerter status — whether the locomotive’s alerter (the device that monitors engineer attentiveness) was being responded to
- Wheel slip and sanders — whether the wheels were slipping and whether sand was applied
- Cab signal status — in equipped territory, what cab signal indications were being displayed
- GPS position — on newer systems, the precise location of the locomotive at each recorded interval
The result is a second-by-second operational log of everything the locomotive was doing in the period leading up to and during an incident. In the right case, this data can tell a story that no witness account can match for precision.
How Event Recorder Data Can Help an Injured Worker
The railroad’s account of what happened is rarely neutral. In the aftermath of an injury, the carrier’s investigators are working to construct a narrative — and that narrative frequently emphasizes worker error, rule violations, or unforeseeable circumstances rather than equipment failure or operational negligence.
Event recorder data can directly contradict that narrative. Consider a few examples:
Excessive Speed
If the railroad claims a locomotive was operating within authorized speed limits at the time of an incident, but event recorder data shows it was traveling significantly faster, that data is powerful evidence of negligence. Speed-related discrepancies between the railroad’s account and the recorder data have featured in FELA litigation against major carriers.
Brake Failure or Misapplication
A worker injured by a sudden, violent brake application may be told that the engineer acted appropriately given the circumstances. Event recorder data showing the timing, severity, and sequence of brake applications can either corroborate or undermine that account.
Alerter Non-Response
The alerter system on a locomotive is designed to detect whether the engineer is attentive — it requires periodic response from the engineer, and if unanswered, it triggers a brake application. Alerter data in an event recorder can show whether the engineer was responding to the alerter in the period before an incident, which bears directly on the question of attentiveness and control.
Horn and Bell Data
In grade crossing accidents or incidents involving workers on or near the track, whether and when warning signals were sounded is frequently disputed. The event recorder does not dispute — it records.
GPS and Position Data
In maintenance-of-way injury cases, where the exact location of a train relative to a work zone or flagging protection is critical, GPS data from the event recorder can be determinative.
The Preservation Problem: Why This Data Disappears
Here is the critical issue, and the one most injured workers don’t know about until it is too late.
Locomotive event recorders do not store data indefinitely. Most systems record on a loop — continuously overwriting older data as new data is generated. Depending on the system, the recorder may retain anywhere from a few days to a few weeks of data before it begins overwriting. Once the data is overwritten, it is gone.
This means that in the ordinary course of railroad operations — with no intentional misconduct by anyone — a locomotive that was involved in an injury incident may have its event recorder data completely overwritten within days if no one takes action to preserve it.
The railroad’s claims department knows this. In some cases, the railroad will download and preserve the data as part of its own investigation — but that preserved data will be in the railroad’s possession, analyzed by the railroad’s experts, and produced to you only through formal discovery, often after months of litigation. You will not know what the data shows until the railroad decides to tell you, and in some cases, you may find that the data was never preserved at all.
The window for preservation is measured in days, not weeks. In many cases, it is shorter than the time it takes for an injured worker to hire an attorney.
When Railroads Fail to Preserve Event Recorder Data
The failure to preserve event recorder data — whether through neglect or something more deliberate — is not without consequences. Courts have addressed the destruction or loss of event recorder data in railroad injury cases, and the outcomes for railroads that fail to preserve this evidence can be significant.
Where a party fails to preserve electronically stored information it had a duty to preserve, and acts with intent to deprive the opposing party of its use, Federal Rule of Civil Procedure 37(e) authorizes the court to instruct the jury that it may presume the lost information was unfavorable to the party that failed to preserve it. In some circumstances, courts have imposed more severe sanctions, including case-dispositive remedies.
The practical effect of an adverse inference instruction in a FELA case is substantial. A jury told that it may presume the missing event recorder data would have been unfavorable to the railroad is a jury that starts deliberations with a significant inference already running against the defendant. Railroads understand this, which is why preservation practices — and the litigation history surrounding them — are worth investigating in any case where event recorder data may have existed.
What Should Happen Immediately After an Injury
If you are involved in a locomotive incident — a derailment, a collision, a runaway, a sudden brake application, or any other event where the locomotive’s operational data would be relevant — the following steps should happen as quickly as possible:
- Report the incident immediately and accurately. A formal incident report triggers certain regulatory obligations that may affect data preservation. Accurate reporting is both a legal obligation and a practical protection.
- Note the locomotive number and consist. Every locomotive has a road number displayed on its cab. If you can safely observe and record the number of the locomotive or locomotives involved in the incident, do so. This information is essential for preservation.
- Contact a FELA attorney the same day if possible. The attorney can determine what evidence needs to be preserved. If the railroad subsequently fails to preserve the data, court-ordered sanctions may be available.
- Do not assume the railroad is preserving the data on your behalf. Even if the railroad conducts its own investigation and downloads the event recorder data, that preserved copy is in the railroad’s hands and only they have control over it.
Event Recorder Data in the Broader Context of Your Case
Event recorder data is rarely the only evidence in a FELA case, but it is often the most objective. Witnesses’ memories are imperfect and subject to influence. Internal railroad records can be incomplete or selectively maintained. The event recorder, by contrast, captures what actually happened — second by second, without editorial judgment.
That objectivity is precisely what makes it valuable — and precisely what makes railroads reluctant to see it produced in litigation. An experienced FELA attorney who knows how to obtain, analyze, and present event recorder data — and who knows what to look for when a railroad claims the data no longer exists — is in a fundamentally different position than one who does not.
This is one of the reasons that FELA representation is not a commodity. The difference between an attorney who understands the technical aspects of railroad injury litigation and one who does not can be the difference between a case built on objective electronic evidence and one built entirely on disputed testimony.
The Bottom Line
If you were injured in a railroad incident involving a moving locomotive, a black box recorded what that locomotive was doing at the moment you were hurt. That data may become vital evidence in your case, but it must be preserved in time.
The first call you make after a railroad injury should be to a FELA attorney who knows how to move immediately to preserve this evidence. The railroad’s investigators are already at work. Every day you wait is a day that evidence may be gone permanently.
