As an experienced Maryland trial lawyer who has been regularly representing victims and their families in fatal and catastrophic train accidents since 1995, there has been an important but gradual change in Maryland law over the past several decades. This change is in the area of private v. public railroad crossings and how Maryland and other jurisdictions view them as the classification affects victims of train accidents.
The duties owed to individuals at private crossings as compared to public crossings were first enunciated by a Maryland court in Annapolis & B. S. L. R. Co. v. Pumphrey, 72 Md. 82, 19 A. 8, 9 (1890). That Court stated:
There is no statute of this state which imposes upon the (railroad) the duty to give signals of the approach of its trains to a private road or farm crossing. Numerous cases in this state and elsewhere have held that a failure on the part of a railroad company to give proper warnings of the approach of its trains to a public highway or thorofare crossing is an act of culpable negligence; but we are aware of no decision which fixes upon a defendant the like consequence for omitting such warnings as to farm crossings. On the contrary, it has been determined twice by this court that no such obligation exists.
Furthermore, Maryland traditionally held that where there was no proof of a legalized public crossing, individuals on railroad tracks were considered trespassers. Baltimore v. Welch, 114 Md. 536, 80 A. 170 (1911). The Welch Court stated:
The duty of those in charge of moving railway trains to keep a lookout for and exert care to avoid injuring persons at railway crossings and on public highways where such persons have a right to be, and may be expected to be found is entirely different from the care required of them in respect to the possible presence of trespassers on the railway tracks where, having no right to be, they are not expected to be found. We have repeatedly held . . . that those in charge of the trains have no duty to anticipate that persons will unlawfully go upon the tracks, and consequently the failure to guard in advance against the possible or probable results of such unexpected wrongful presence of persons on the tracks does not constitute negligence on the part of the railroad company whose liability to use care to avoid injuring any person so trespassing begins only when their agents are made aware of his presence and peril.
80 A. at 173 (emphasis added).
Over the years, Maryland courts very slowly and subtly began to relax the view that persons on railroad tracks at a point not designated a public crossing were trespassers and owed no duty until train crew became aware of their presence and peril. For example in Pennsylvania R. Co. v. Breeden, 154 Md. 91, 140 A. 82 (1928), a Maryland court for the first time appeared to recognize that a private crossing could take on attributes of public crossings. Although holding that no duty was owed to an individual hit by a train at the particular private crossing, the court gave great weight to the presence of a sign reading “No Thorofare, Private Property,” finding that the sign was a “plain and unmistakable notice that the roadway over the track was not a public crossing.” 140 A. at 85. The court found further that the fact that the sign was being disregarded did not cast upon the railroad a greater degree of care. Id. The Court went on to quote Elliott on Roads and Streets, further demonstrating its tolerance for the idea that private crossings can take on public qualities:
Unless the company has done something to allure or invite travelers to cross, or has in some manner treated it as a public crossing, we are inclined to think the better rule is that they are, at most mere licensees to whom no duty of active vigilance is ordinarily due. Mere permission or passive acquiescence under ordinary circumstances does not constitute an invitation.
Elliot on Roads and Streets (2d Ed.) s. 1019 (emphasis added).
In U.S.A.C. Transport v. B& O Railroad, 209 F.Supp. 815 (1962), Maryland came closer to accepting the idea that the idea that private crossings could become public crossings. In that case, the Court rejected B & O’s reliance on Breeden, supra, in its claim that a crossing which was the site of a train/truck collision was private, and no duty of active vigilance was owed to the truck driver. While never actually explicitly holding that the crossing was a public one, the Court distinguished U.S.A.C. from Breeden on the basis that there was no sign warning people to stay away, but there were in fact “Railroad Crossing” signs. 209 F.Supp. at 821. Furthermore, as was the case in Breeden, it could not be said under the facts of the U.S.A.C. case that “[t]he (railroad) is seen not to have given permission to the public to use the crossing nor passively to have acquiesced in such a use, but to have objected in as obvious, continuous, practical, and reasonable a manner as could be devised.” Id. The court went on to lay out the duty of railroads stating:
[T]he duty of those in charge of moving railway trains to keep a look out for and exert care to avoid injuring persons at railway crossings and on public highways where such persons have a right to be, and may be expected to be found is entirely different from the care required of them in respect to the possible presence of trespassers on railway tracks where, having no right to be, they are not expected to be found.
Id., Campbell v. Patton, 227 Md. 125, 140, 175 A.2d 761, 770 (1961), quoting Welch. Interestingly, U.S.A.C., while quoting the language from Welch, arrived at the opposite conclusion of the Welch court. While Welch seemed to view anyone at a private crossing as a trespasser to whom no duty was owed, U.S.A.C. took that position that where there is no signage prohibiting use of the crossing, and the railroad may expect the presence of individuals at the crossing, the railroad may have a duty to exert care to avoid injury to those individuals.
U.S.A.C. was the last Maryland case to address the duty owed to individuals at private as opposed to public crossings. Other jurisdictions, however, have addressed this issue. In Chesapeake and Ohio Ry. v Faison, the Court found that even where a crossing is not public within the meaning of a state statute, habitual and longstanding use of a crossing by the public with knowledge and acquiescence of a railway company may give to the passageway the attributes of a public crossing at common law and cast upon a railway the duty of exercising ordinary care for the safety of others. 189 Va. 341, 52 S.E.2d 865,866 (1949); Weaver v. National Railroad Passenger Corp., 863 F.Supp. 291, 294 (1994).
In Hammond v. Maine Central Railroad, 390 A.2d 502 (1978), at issue was whether a couple injured when a train struck their van at a private crossing were trespassers or “bare licensees,” who were only owed a duty by the railroad to refrain from willful or wanton misconduct. In reversing the lower court’s dismissal of the case, the Court found that “Maine law has also long recognized that a railroad crossing may be a private one in law, yet a public crossing in fact.” 390 A.2d at 504. The Court stated that a railroad owes a duty of ordinary care at a private crossing where there has been an implied invitation to the public to use the crossing, but mere acquiescence is not enough. Id. The Court held further, however that there may be facts as to its construction, maintenance and use that will warrant a jury in finding such an invitation, and such facts will present a question for the jury. Id. In determining that that there was enough evidence to submit to a jury the question of whether or not the crossing was public in fact, the Court considered that the crossing dated back to 1870, was graded and planked, no signs prohibited the public from crossing there, there was one house beyond the crossing, and there had earlier been a fatality at the crossing.
In Georgia it has been held that the absence of a statutory duty to install protective devices at private crossings does not establish that there is no common law duty as to the installation of protective devices at private crossings. Central of Georgia Railroad Company v. Markert, 200 Ga. App. 851, 853, 410 S.E.2d 437 (1991). In that case, parents brought a wrongful death suit against Central of Georgia after their son was killed when his car was struck at a private crossing. Among other things, the parents claimed that the warning devices at the crossing were inadequate. The railroad moved for summary judgment claiming that they had no common law duty to provide warning devices because the crossing was private rather than public. On appeal, the lower court’s denial of summary judgment was upheld. The Court reasoned that the status of the crossing as public or private was immaterial to those who had the right to use it. Id. “With respect to persons rightfully using a crossing . . . the duty of the railroad company is similar to its duty as to users of public crossings, and as to them, it must exercise reasonable or ordinary care, commensurate with the danger of the particular situation.” 74 CJS, Railroads s. 713, p. 1308. Accordingly, appellants would have no less of a common law duty with regard to a public crossing.” Central of Georgia, 200 Ga. App. at 854, 410 S.E.2d at 440.
Various other jurisdictions have also imposed a common-law duty to warn at private crossings under certain circumstances. See, e.g., Mulkey v Spokane, Portland & Seattle Ry. Co., 65 Wash. 2d 116, 396 P.2d 158 (1964) (whether or not a statute requiring a warning to be given before a train crosses a traveled road was applicable, the engine crew would have been negligent if it failed to give timely notice of train’s approach by a whistled warning where it knew the private road in question to be in use by many people and where it recognized the necessity of a warning); Fritzsche v Union Pac. R. R. Co., 303 Ill. App. 3d 276, 707 N.E.2d 721 (1999) (while there is no statutory duty requiring train crews to sound the train’s approach to a crossing, there is a common-law duty to give notice of the train’s approach at all points of known or reasonably apprehended danger); Bakhuyzen v National Rail Passenger Corp., 20 F.Supp. 2d 1113; Paulsen v Des Moines Union Ry. Co., 262 N.W.2d 592 (1996) (issues of material fact existed as to whether railroad had or assumed duty to sound train whistle at certain private intersection, and as to whether whistle was properly sounded prior to train’s collision with truck, precluding summary judgment in truck driver’s and train passenger’s negligence action against railroad); Lowery v Seaboard Coastline R. R. Co., 270 S.C. 113, 241 S.E.2d 158 (1978) (fog, inferences of train’s excessive speed, lack of whistle warning until too late to avoid a collision, and failure of railroad to properly maintain the right-of-way by cutting down high weeds sustained award of both actual and punitive damages in favor of motorist in suit arising from collision at intersection of railroad track and private dirt crossing); Illinois Cent. R. R. Co. v White, 610 So. 2d 308 (1992) (to licensee who uses private railroad crossing that is not known to be regularly and frequently used by public, railroad owes duty not to willfully or wantonly injure and to exercise reasonable care for his safety after his presence is discovered, but railroad has no duty to anticipate his presence, or to give audible warning of its approach to private crossing which is not known by railroad to be regularly used by public); Beasley v Grand Trunk W. R. R. Co., 90 Mich. App. 576, 282 N.W.2d 401(1979) (inasmuch as automobile-train collision occurred at private crossing, railroad was relieved of its statutory duties toward general public insofar as taking precautionary measures, however, jury questions were presented as to whether railroad breached its common-law duties by allegedly failing to give adequate warning and by failing to maintain clear view for motorists); Illinois Central Gulf Railroad v. Mc Daniel, 246 Miss. 600, 151 So.2d 805 (1963) (where private crossing was used by public for thirty years with the assent and acquiescence of the railroad, the railroad and its employees had a duty to give reasonable and timely warning of the approach of trains for the benefit of travelers at the crossing).