Rayner v. Union Pacific Railroad Company et al
ORDER finding the crossing at issue in this case is a private crossing (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/16/2015. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MITZI JAYNE RAYNER, Personal
Representative of the Estate of Gary Don
THE UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, et al., )
Case No. CIV-13-46-M
This case arises from a March 1, 2012, vehicle-train collision, approximately two miles south
of Dover, Oklahoma. Plaintiff’s husband, Gary Don Rayner, was struck and killed by a southbound
Union Pacific train. Plaintiff contends that the crossing at issue is a private crossing with public
characteristics; defendant Union Pacific Railroad Company (“Union Pacific”) contends the crossing
at issue is a private crossing. Because the admissibility of certain evidence depends on whether the
crossing at issue is a private crossing or a private crossing with public characteristics, and because
the requisite duty owed by Union Pacific depends on whether the crossing at issue is a private
crossing or a private crossing with public characteristics, the Court DIRECTED the parties to submit
briefs regarding whether the crossing is a private crossing or a private crossing with public
characteristics. The parties have submitted their briefs, and based upon those submissions, the Court
makes its determination.
The Oklahoma Corporation Commission defines a “private crossing” as “a location where
a physical crossing is present but the road does not meet the conditions for a public crossing. Private
crossings usually restrict public use by an agreement which the railroad has with the property owner
by gates or similar barriers.” OAC 165:32-1-3.1 Oklahoma statutes define a private road or
driveway as “[e]very way or place in private ownership and used for vehicular travel by the owner
and those having express or implied permission from the owner, but not by other persons.” Okla.
Stat. tit. 47, § 1-148.
On the other hand, a private crossing with public characteristics is a crossing where the
intersecting road is not maintained by a public authority, but the public nevertheless has used the
crossing frequently and continuously for a number of years. See Railroad-Highway Grade Crossing
Handbook, p. 191, attached as Exhibit 10 to Union Pacific’s Trial Brief on Private Crossings.
Further, the Oklahoma Supreme Court has defined a private crossing with public characteristics as
“a private crossing where the public is using it to such an extent and for a sufficient period of time
that the railroad might reasonably expect persons thereon.” Bonner v. Chicago, R. I. & P. Ry. Co.,
185 P. 1093, 1094 (Okla. 1919). Additionally,
[t]here is abundant authority to the effect that a railroad crossing may
not be upon a public highway, yet, if the track has been used by
travelers as a public crossing for a long time with the knowledge of
the company, and without objection, and the company has treated the
same as a public crossing, it will be presumed to be such, and the
railway company will be bound to exercise ordinary care to prevent
injury to persons using the same.
Midland Valley R. Co. v. Shores, 136 P. 157, 158 (Okla. 1913).
Based upon the above authority, the Court finds that whether a crossing is a private crossing
with public characteristics turns on the use of the crossing by the public and on how the railroad
company has treated the crossing. Having carefully reviewed the parties’ submissions, the Court
The Oklahoma Corporation Commission defines a “public crossing” as “a location where
the tracks cross a road which is under the jurisdiction of and maintained by a public authority and
which is open to public travel.” OAC 165:32-1-3.
finds that the crossing at issue in this case is a private crossing. The road that intersects the railroad
tracks at this crossing is a private oil lease road that dead ends at one oil well - a road that clearly
meets the statutory definition for a private road under Okla. Stat. tit. 47, § 1-148. Regarding the use
of the crossing by the public, there is no evidence in this case that the public used the crossing prior
to the accident. The locomotive engineer in this case, Gary Miller, testified that he had never seen
a car at the crossing before. See Transcript of Gary Miller’s Deposition at p. 28, lns. 19-20.
Additionally, there are no businesses, churches, schools, homes, or any other buildings of any sort
serviced by this road. Further, in 2008, the landowner, Ms. Arnold, filled out a Road Crossing
Application Form and identified the crossing as a private crossing servicing an oil lease that would
be accessed approximately one time per day by those working on the oil well. See Road Crossing
Application Form, attached as Exhibit 16 to Union Pacific’s Trial Brief on Private Crossings.
Regarding how Union Pacific treated the crossing, Union Pacific erected a sign at the crossing at
issue that stated: “PRIVATE RR [Railroad] CROSSING. NO TRESPASSING. RIGHT TO PASS
BY PERMISSION SUBJECT TO CONTROL OF OWNER.” Additionally, this crossing is listed
as a private crossing in Union Pacific’s internal documents, and the Federal Railroad
Administration’s database for public and private crossings lists this crossing as private. See U.S.
DOT – Crossing Inventory Information, attached as Exhibit 18 to Union Pacific’s Trial Brief on
Plaintiff asserts that the crossing is a private crossing with public characteristics based upon
the “legal characteristics” of the crossing. Specifically, plaintiff relies upon the following three
characteristics: (1) complete ownership and control by Union Pacific, not a private person; (2)
continuing maintenance by Union Pacific; and (3) installation of a whistle board. Based upon the
law set forth above, the Court finds that these characteristics do not make the crossing at issue a
private crossing with public characteristics. While Union Pacific is not a private individual, it is a
private entity, not a public entity. Further, Union Pacific’s maintenance of the crossing does not
give this crossing public characteristics; it in no way addresses whether this crossing was used
frequently and consistently by the public. Finally, the Court finds the installation of a whistle board,
by itself, and in light of the overwhelming evidence showing the crossing is a private crossing, does
not make the crossing at issue a private crossing with public characteristics.
Accordingly, for the reasons set forth above, the Court FINDS the crossing at issue in this
case is a private crossing.
IT IS SO ORDERED this 16th day of January, 2015.
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