concurring specially.
1.1 concur in the ruling in Division 1 but I am of the opinion that an explanation is in order. It is by not raising below the contention that defendants waived by delay the defense of federal preemption, that plaintiffs/appellees waived the point in this court. “Issues not raised in the court below may not be raised [here] for the first time as they present nothing to this court for decision.” Lester v. Groves, 162 Ga. App. 590, 591 (291 SE2d 785) (1982); Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581) (1990). The majority cites Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (2a) (173 SE2d 723) (1970), as authority concerning appellees’ waiver, but that case does not discernibly address this principle.
With respect to whether federal preemption is an affirmative defense which is governed by the procedural rules of OCGA § 9-11-8 (c), see Wright Assoc. v. Rieder, 247 Ga. 496, 500 (2) (277 SE2d 41) *855(1981), which distinguishes F. R. Civ. Proc. 8 (c) from what is now OCGA § 9-11-8 (c). If subsection (c) applied to this defense, that section might require its being alleged in the answer, or by motion for summary judgment “but only when the motion for summary judgment is the initial pleading tendered by defendant” (which is not the case here), or in the pretrial order that supersedes the pleadings. That is the ruling in Funding Systems Leasing Corp. v. Pugh, 530 F2d 91, 96 (9, 10) (5th Cir. 1976). But see Easterwood v. CSX Transp., 933 F2d 1548 (1) (11th Cir. 1991). It does not appear that this issue has been expressly resolved in Georgia.
2.1 concur in Division 4 but wish to point out that since there are statutory duties governing the railroad’s duties with respect to protective warning devices at public road crossings but not at private way crossings, I cannot agree that it is immaterial that the crossing was not of a public road but rather of a private dirt road leading in and out of a business.1
OCGA §§ 32-6-200 to 32-6-202 cover such crossings on the state highway system, the county road systems, and the municipal street systems, specifying who may require and approve them, who shall bear their expense, and who shall maintain them. These provisions place no duty on a railroad to install or maintain protective devices at private crossings. This may be explained by the fact that these provisions are part of the Code chapter on the regulation of maintenance, use, etc., of public roads generally, which is part of Title 32 dealing with “Highways, Bridges, and Ferries.” However, the predecessor to OCGA § 32-6-190, which is the general section on the maintenance of grade crossings by railroads, had included also “private ways.” Code of 1933, § 94-503. See Atlantic Coast Line R. Co. v. Layne, 88 Ga. App. 674, 680 (77 SE2d 565) (1953); Atlantic Coast Line R. Co. v. Sweatman, 81 Ga. App. 269 (58 SE2d 553) (1950).
Chapter 8 of Title 46 regulates railroad companies. OCGA § 46-8-194 to 46-8-196 requires certain crossbuck signs at crossings of public highways. No mention is made of private ways. The evidence is that there were crossbuck signs at this crossing.
Since the duty of the railroad is not spelled out in the law with respect to its crossing of private ways, so that its breach would be negligence per se, the duty with respect to warning devices would involve the exercise of reasonable or ordinary care, as the majority states. That would be a jury question, raised by plaintiffs’ allegation in their response to defendants’ motion for summary judgment that *856“[t]he Defendant railroad failed to have active warnings at subject crossing to warn motorists or pedestrians of a train’s approach to the crossing.”
Decided July 16, 1991 Reconsideration denied July 31, 1991 Hall, Bloch, Garland & Meyer, F. Kennedy Hall, Steven J. Stewart, for appellants. Burt & Burt, Hilliard P. Burt, for appellees.I am authorized to state that Presiding Judge Banke joins in this special concurrence.
Amendments to the Federal-Aid Highway Act have placed the obligation of regulating the safety of railroad crossings on the states. 23 USC §§ 101 and 130. Karl v. Burlington N. R., 880 F2d 68 (8th Cir. 1989); Carson v. Burlington N. R., #CV 89-0-513 (D.Neb. June 27, 1990) (unpublished).