dissenting:
Because the Majority opinion reinvigorates the railroad’s virtual immunity from liability at private crossings, I must respectfully dissent and express my concern that, in this case, an unjustified allegiance to the concept of stare decisis has led us to neglect our duty, as the highest court of this state, to shape the development of the common law of Kentucky as changing conditions so require. Justice Charles Leibson noted, in Hilen v. Hays, 673 S.W.2d 713, 717 (Ky.1984), “the doctrine of stare decisis does not commit us to the sanctification of ancient fallacy.” Then, quoting the Iowa Supreme Court21 he added, “(S)tare decisis does not preclude the change. That principle does not require blind imitation of the past or adherence to a rule.... We must reform common law doctrines that are unsound and unsuited to present conditions.”
If ever a doctrine was unsuited to present conditions, it is this one. The majority’s ruling is based upon the century-old doctrine holding that, at a well-established and frequently used private rail crossing, a railroad company owes no duty of care to warn pedestrians or motorists of an approaching train, and no duty to use ordinary care to lookout for pedestrians or motorists unless the train crew actually sees them in a position of imminent peril; it also exempts railroads from the duty to use ordinary care to maintain its property at a private crossing in a reasonably safe condition for persons whose presence on the property it permits and reasonably anticipates. In essence, the railroad owes *248no duty at an ordinary private crossing except to avoid intentionally injuring someone. What other non-governmental entity in our society enjoys that degree of immunity from tort liability?
The rule I now condemn came into our jurisprudence in an era when the approach of a locomotive was a sight to behold. Unlike the comparatively quiet and unobtrusive diesel engines in use today, our rule was written when trains were pulled by steam locomotives belching smoke and steam that could be seen and heard for great distances. Trees and underbrush growing along the tracks could not hide that approaching danger. Members of the public using a private crossing in those days were not enclosed within the cab of a modern automobile, with its own engine running. Instead, they were out in the open air, on foot, astride the back of a horse or a mule, or sitting on the wooden board of a wagon seat behind one or more horses, which also would not fail to notice the approaching behemoth. Kentucky was more sparsely populated in those days, and most likely had nowhere near the 2,396 private railroad crossings now existent in the state. In summary, when the rule was created the possibility that a private railroad crossing posed a hidden danger to the travelling public was nil. With today’s opinion, we perpetuate a rule that is unsound and unsuited to present conditions.
I do not share the majority’s concern that we lack “a proposed framework” for restructuring a more fitting standard of care. Our jurisprudence abounds with them. Except for railroads, all property owners have a duty of ordinary care to maintain their property in a reasonably safe condition, and a duty to discover unreasonably dangerous conditions on the land, and to either correct them or warn of their presence. See Kentucky River Medical v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010), citing Perry v. Williamson, 824 S.W.2d 869 (Ky.1992). That duty would impose no injustice upon the railroad.
Also, owners of electric power line rights-of-way, in constructing and maintaining electric transmission lines where exposure to the dangers of electricity exists, owe the highest degree of care and skill to protect all persons at places where they have a right to be. But even where the danger posed by power lines is not from the ultra hazard of electrical shock, an electric power company stills bears the duty of any property owner to exercise ordinary care for persons whose entry upon the property is foreseeable. See Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209, 212 (Ky.App.2007). Likewise, owners of natural gas transmission rights-of-way must exercise ordinary care to inspect and maintain their lines in such condition as to prevent the escape of gas therefrom. Moore v. London Gas Co., 372 S.W.2d 270, 272 (Ky.1963). In this day and age, there is no reason why a railroad, crossing through or beside another’s land, should not observe the same standards of care we impose upon an electric power line owner or gas line owner crossing though, or beside, the same land.
The intersection of a railroad and a public highway is fundamentally different from a private crossing, and it is reasonable to apply a different duty to each type of crossing. But, using CSX’s own words, private crossings are subject to “the no-duty rule,” and that notion is antithetical to modern tort concepts. The three exceptions to the “no-duty rule” may breathe the air of conscionability into an unduly harsh doctrine, but still allow railroads the freedom to be careless about all but the most “exceptionally dangerous” crossings. We are remanding this case so that a jury may determine whether this particular crossing was “ultra-hazardous,” however *249that concept may be defined, and hence, whether the railroad had a duty to warn of the train’s approach. In doing so, we misdirect the focus of the inquiry toward the geography of the railroad crossing, and away from the conduct of these using the crossing, whether by rail or by private road way. A more direct approach, and, in my view, a more just approach, is to recognize that every private crossing poses some degree of danger for both the railroad and those crossing it on a private way, and to impose upon each a duty of ordinary care. The motorist has the traditional duty to exercise ordinary care in the operation of his vehicle for his own safety, and the safety of his passengers and others, including railroad’s personnel, and its property; for the railroad, a duty to exercise ordinary care in the operation of the train for the safety of persons crossing the tracks, and the traditional duty of any landowner to maintain its property in a reasonably safe condition, and to exercise ordinary care to discover and correct any unreasonably hazardous conditions, or to warn others of the danger.
A return to this more reasonable standard of care would in no way relieve Mrs. Calhoun of her own duty of ordinary care for her own safety. A jury would undoubtedly take a close look at that. But, there was evidence that the train failed to sound its horn as it approached the crossing on the dark and foggy December morning; that it was travelling at a high speed, and accelerating as it neared the crossing; that the railroad had not trimmed the growth of trees along the tracks that, at least in part, screened the train from the vehicular traffic on the approach to the crossing; and, that the train’s engineer had prescriptions for medications that could have impaired his ability. Under an appropriately structured standard of care, those circumstances viewed in the light most favorable to Appellant, sufficiently establish a genuine issue of material fact to negate the railroad’s demand for summary judgment.
Accordingly, I dissent because I believe that upon remand of this case to the trial court, we should overrule the obsolete doctrine that unreasonably shields railroads from the duty to exercise ordinary care for the safety of persons at private crossings.
CUNNINGHAM, J., joins.
. Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1983)