IV. Sounding of Locomotive Horns

A. Position of Complainants

Complainants argue that any reasonable person would conclude that the sounding of a horn is not required at this crossing, where there is no exposure to anyone. According to Complainants, the only possible reason for sounding a horn at the subject crossing is for the purpose of intentional harassment.

B. Position of UP

UP responds that it does not intend to harass the Complainants or their neighbors. UP's policy of requiring train crews to sound the locomotive horn as trains approach grade crossings is dictated by a concern for safety and based on UP's experience with incidents involving trespassing pedestrians, motorcycles and off-road vehicles on its right of way.

C. Discussion

PU Code Section 7604 requires a locomotive crossing any street, road, or highway to sound a bell, steam whistle, air siren or an air whistle.¹ Under California law, railroads are potentially liable for personal injury damages if they are involved in an accident at a private grade crossing where the train crew failed to sound the locomotive horn as the train approached the crossing. (See, Emmolo v. Southern Pacific, (1949) 91 Cal. App. 2d 87.)

However, Pub. Util. Code Section 1202 (d)(2)(A) recognizes that "there is a growing need to mitigate train horn noise without compromising the safety of the public." This statutory provision establishes "pilot programs" to test the utility and safety of stationary, automated audible warning devices as an alternative to trains having to sound their horns as they approach highway-rail crossings." (Ibid.) At present, there are only limited federal regulatory requirements concerning the use of locomotive horns or creating exceptions to their use by railroads. (See 49 C.F.R. Parts 214.339,² 234.105(d),³ and 234.106,⁴ and 234.107(d).⁵) Under Pub. Util. Code § 1202(d)(2)(A) and other provisions of the Public Utilities Code, the locomotive operator shall always have discretion to sound the horn.

But the pilot program established under the California statute, the only exception to the requirement that locomotive horns be sounded at all crossings under Pub. Util. Code § 7604, requires a "stationary, automated audible warning

device" as an alternative to the sounding of the locomotive's horn at a crossing. The purpose of the stationary, automated audible warning device is to direct the sound of the audible warning device to the motor vehicles and pedestrians using the street or road intersecting the railroad line. Thus, an audible warning device is still required but the noise produced is not directed in all directions, as in the case of a locomotive horn, but is focused, instead, parallel to the street or road. Thus, a stationary, automated audible warning device located at this crossing would not significantly relieve complainant of noise near his home.

Therefore, considering the federal regulatory requirements, Pub. Util. Code § 7604 and 1202(d)(2)(A), the potential liability to the railroad for accidents at this location, and the need to protect railroad employees maintaining and servicing the line at this crossing, the Commission cannot impose a no-horn rule for this railroad crossing as requested by complainant. The motion to dismiss the complaint should be granted.