I think it may be useful to review private and public grade crossings to see how crossings are established and modified and to who can be held liable in the case of an accident.
Private grade crossings
Private grade crossings are established by issuance of a permit or easement by the railroad to the private interest that desires the crossing. The requirements of the crossing, including the type and design of protective devices, are specified by the permit or easement. Also specified is who pays for the crossing. That one is usually easy. The party desiring the crossing pays everything. One key aspect of any crossing permit is that the railroad is held harmless in the event of an accident. Even if a jury finds the railroad negligent for an accident, the permit holder covers any liability incurred by the railroad. Unless a railroad’s legal department was napping when a permit is issued, or there is some unusual circumstance, railroads will not be financially harmed by an accident at a private crossing no matter what a jury finds.
Public highway crossings
The Federal government has authority to regulate railroads. The federal government has delegated some of that regulatory authority to the states. Included among the areas delegated to the states is the authority to regulate public grade crossings. Most states have the commission that regulates public utilities responsible for railroad grade crossings.
If any party – state, county, local highway interest, or the railroad itself – wishes to establish or modify a grade crossing, the request is made though the designated state regulatory commission. The commission contacts all possible affected parties, holds field visits, formal hearings, and finally issues an order setting forth the requirements for the crossing, including the design and the allocation of installation and maintenance costs. In the end, the type of crossing is as ordered by the state commission. It must meet any applicable FRA requirements, but it is a state responsibility.
In practice, the railroad and the highway people usually work out the details of the crossing in advance. Once the details are determined, the parties go to the commission to get the plans approved and the costs allocated. However, in the rare cases where there is no agreement, the state commission has the final say.
The big difference between a private crossing and a public crossing is that the private crossing exists only if the railroad agrees and (almost always) only if the railroad is held harmless. A public crossing exists because the state regulatory authority orders it (even if the railroad does not want it), and all the parties are potentially liable in the event of an accident. At a public crossing, no one is held harmless.
