dissenting:
In Brown v. Baltimore & Ohio Railroad Co., 805 F.2d 1133 (4th Cir.1986), this court upheld the validity of an indemnity clause contained in a railroad licensing agreement similar to the one involved in this case. We upheld the indemnity agreement in Brown because we concluded that Md.Cts. & Jud. Prac. Code Ann. § 5-305 did not vitiate indemnity provisions in railroad licensing agreements. Brown, 805 F.2d at 1141-42. Yet today the court holds that the statute invalidates the indemnity provision contained in this railroad licensing agreement.
This case appears indistinguishable from Brown. In each case the county sought the license from the railroad — in Brown for the purpose of installing a sewer line, and here for the purpose of installing a box culvert. In each case the license was granted as an accommodation to the county in exchange for a small fee — $500 in Brown, $400 in this case. In each case the harm to the railroad employee was caused by the railroad’s negligence — not by any negligence of the counties and their contractors. It is true that the facts establishing negligence in Brown differ from the facts in this case. In Brown, a railroad engineer failed to stop his train before it struck some construction equipment, injuring the brakeman. In this case, the railroad sent an employee to perform work for the benefit of the county and the city on an unsafe utility pole. In both instances the railroads failed to provide their employees a safe place to work. Upon analysis, the distinction between the cases is simply one without a difference as far as § 5-305 is concerned. The statute makes no distinction based on the particulars or the nature of the indemnitee’s fault. I therefore see no justification for distinguishing this case from Brown.
Such a case-by-case determination of the validity of indemnity clauses in railroad licensing agreements has unfortunate consequences. Parties to these agreements will have no way to know whether indemnification is available until after an accident occurs and liability is assessed. Where bright-line rules currently exist, courts should hesitate to place parties in such a quandary.