Recently, there has been an increasing number of news reports in Switzerland about tragic accidents in which people are injured or even killed by trains, trams or buses. A fatal accident recently occurred between a track worker and a train. A young girl died when she stepped onto the tracks where she was hit by a passing train. In addition, another serious accident occurred in August 2024 when a tourist walking on the track was hit by a train. This article addresses the question of liability in such cases and the significance of the injured person’s own fault.

Collision between train / tram and pedestrian or cyclist

Pursuant to Art. 40b para. 1 of the Railway Act, the owner of a railway company (trains and trams) is liable for the damage if the characteristic dangers associated with the operation of the railway result in a person being killed or injured. According to Art. 40c Railway Act, however, the railway company is exempt from liability if a circumstance that is not attributable to the company has contributed so much to the occurrence of the damage that it is to be regarded as its main cause (para. 1), e.g. force majeure (para. 2 lit. a) or gross negligence on the part of the injured party (para. 2 lit. b). Gross negligence is only assumed if an injured person disregards elementary rules of care that a reasonable person would have observed in the same situation. The question whether the injured party acted grossly negligent is often controversial between the parties. In recent times, the Swiss Federal Supreme Court has ruled more often in favour of the railway company in this regard as the following examples show:

In 2022, the Federal Supreme Court ruled that someone who suddenly steps onto a tram track without making sure that a tram is not approaching because they are looking at their mobile phone is acting with gross negligence. Consequently, the liability of the railway company was denied due to the interruption of the causal link (BGE 148 III 343).

The Federal Supreme Court also ruled in favour of the railway company in its decision 4A_91/2022 of 31 May 2022. In this case, the injured party, who was familiar with the area, rode his bicycle illegally on the left pavement of a one-way street against the direction of travel. The injured party wanted to cross a junction. In order to avoid a collision with the tram, he braked abruptly, lost his balance and fell in front of the tram, which dragged him a few metres and seriously injured him. The Federal Supreme Court judged the injured party’s driving style to be ‘so grossly careless and obviously so blatantly deviating from reasonable average behaviour in the given situation’ that it was ‘clearly to be regarded as the sole cause of the accident when viewed from an evaluative perspective’. Accordingly, the Federal Supreme Court affirmed an interruption of the causal link.

Finally, the so-called “catamaran case” should also be mentioned (BGer 4A_131/2021 of 11 February 2022). In this case, the conduct of two people who wanted to drive a catamaran to the lake on a two-wheeled transport vehicle had to be assessed. They had to cross a level crossing. The catamaran’s mast, which was almost seven meters high, hit the railroad overhead line, which was at a height of 5.65 meters. The current was diverted by the catamaran to the injured parties, who were seriously injured as a result. The Federal Supreme Court held that the injured parties had created a danger by raising the mast too high. In addition, they did not have any obstacles in their field of vision. This constituted grossly negligent behavior in view of the court.

In earlier decisions, the Federal Supreme Court ruled more leniently in favour of pedestrians  as the following examples show :

When a pedestrian tried to reach a train at the last moment and did not pay sufficient attention to the situation, that was considered to be a typical traffic misconduct that must be expected (see BGer 4A.479/2009 of 23 December 2009).

In 2002, an accident occurred in which a pedestrian suddenly stopped for no reason while crossing the track. The tram driver pressed the bell and initiated emergency braking, but was no longer able to prevent the collision. The Federal Supreme Court supported the lower court’s reasoning that it was not so unusual for a pedestrian crossing the road to stop suddenly. Consequently, the pedestrian’s behaviour did not interrupt the causal link due to a grossly negligent behaviour (BGer 5C.142/2005 of 30 September 2005).

The Swiss legal doctrine has critically evaluated the case law that denied the railroad’s liability. It was especially pointed out that urban traffic is becoming more congested and complex, partly due to the growing number of trendy vehicles on roads and sidewalks. Mistakes made by road traffic users, while seemingly unreasonable in hindsight, are often the result of being overwhelmed by the traffic conditions rather than any moral fault, and thus should not be considered as grossly negligent with the consequence of the causal link being interrupted and the liability being denied (cf. Volker Pribnow, Haftung und Ausschluss der Haftung des Eisenbahnunternehmens für das charakteristische Risiko, in: SJZ 119/2023 p. 99 ff.).

Collision between tram / train and a car

If a tram / train and a car collide, the judge must weigh up both the operational risks and the fault of both parties involved. The operational risk is the risk posed by a vehicle due to its speed and moving mass, the combination of which triggers the kinetic energy. Although the different masses of the two vehicles (car and train) as well as the different braking distances justify a strongly differentiated assessment of the operating risks, the Federal Supreme Court applies a schematic quota division of 1:2, i.e. a liability quota of 2/3 at the expense of the railway company, in the absence of fault on both sides (cf. Brehm Roland, Motorfahrzeughaftpflicht Bern 2008, Rz. 687). In the situation frequently encountered in practice, where the car owner is moderately at fault and the railway company is not at fault, the Federal Supreme Court applies equal liability ratios (50:50, cf. BGer 5C.276/2002 of 8 April 2003).

Collision between a bus and a pedestrian / cyclist

If a pedestrian or cyclist is hit by a bus, liability is determined in accordance with Art. 58 para. 1 of the Road Traffic Act which reads as follows : if death or bodily harm or material damage is caused with a motorised vehicle that is in service, the owner is civilly liable for the damages. However, such owner liability can be reduced or even excluded. Art. 59 para. 1 Road Traffic Act states that the owner of the vehicle is released from liability if he or she proves that the accident was caused by force majeure or gross negligence on the part of the injured party or a third party without any fault on his or her part or on the part of persons for whom he or she is responsible and without any faulty condition of the vehicle having contributed to the accident. Therefore, a similar concept as with regard to accidents between trains / trams and pedestrians / cyclists apply and thus also similar questions need to be addressed when it comes to the question of liabilty or gross negligence, respectively.

Conclusion

Due to the strict liability provisions of the Railway Act and the Road Traffic Act, railway, tram and bus companies are generally liable in full, even if they are not at fault. However, depending on the level of culpability of the injured party, liability may be excluded or reduced.

RA Jonas Steiner