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AGO 1959 No. 83 - November 16, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

RAILROADS - FULL CREW LAW - TURNAROUND TRAINS.

A "turnaround" train constitutes two trains, and two railroad companies jointly using a common track, each of whom operates a "turnaround" train within the statutory 24-hour period with 25 or more cars without a full crew of six men, are violating the Washington full crew law.

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                                                               November 16, 1959

Honorable Francis Pearson
Chairman, Public Service Commission
Insurance Building
Olympia, Washington                                                                              Cite as:  AGO 59-60 No. 83

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following questions:

            1.  Does a "turnaround" train (as explained below) constitute two trains within the meaning of RCW 81.40.030?

            2.  If the answer to question No. 1 is in the affirmative, may two separate railroad companies each operate one "turnaround" train on the same line and still be exempt from the provisions of RCW 81.40.020?

            We answer question one in the affirmative and question two in the negative.

                                                                     ANALYSIS

            1. In your letter you set out the following facts which caused you to submit the instant inquiry:

            "Two railroads, the Union Pacific and the Milwaukee, each operate one round trip or 'turnaround' train daily over a common track between Helsing Junction and Aberdeen, Washington.  Such round trip is completed within a 16 hour period.  For  [[Orig. Op. Page 2]] example, the Union Pacific train may leave Helsing Junction in the morning and after a 'turnaround' at Aberdeen return with the same crew, engine and caboose, but with different cars.  Meanwhile the Milwaukee performs the same type of service in the opposite direction starting at Aberdeen.  It bears noting that such 'turnaround' trains are assigned different schedules or train numbers for each portion of said round trip run.

            "Recently, one of the railroads operated a train consisting of three loaded freight cars and twenty-two empty cars between Maytown and Aberdeen with less than a full crew.  On another occasion the same railroad operated a train containing fourteen loaded freight cars and eleven empty cars between Balch and Maytown, also with less than a full crew.  Each of said trains operated over said common track."

            Section 2, chapter 134, Laws of 1911, provides in part as follows:

            "It shall be unlawful for any . . . corporation . . . operating any railroad . . . in the State of Washington . . . to operate over its road or any part thereof, or suffer or permit to be run over its road outside of the yard limits, any freight train consisting of twenty-five or more cars exclusive of engine and caboose, with less than a full train crew consisting of six men, to wit: one engineer, one fireman, one conductor, two brakemen and one flagman . . ."

            Section 3, chapter 134, Laws of 1911, provides in part as follows:

            "Each train or engine run in violation of section one or two of this act shall constitute a separate offense:  Provided, That nothing in this act shall be construed as applying . . . to any line, or part of line, where not more than two trains are run in each twenty-four hours."

            These two sections are presently codified as RCW 81.40.020 and 81.40.030.

            While our supreme court has never interpreted these full crew statutes, our office has issued numerous opinions interpreting them.  This office has never, however, been previously faced with the aforementioned two questions.

             [[Orig. Op. Page 3]]

            Inasmuch as the full crew statutes are penal in nature, this office has followed the well-established rule of statutory construction that penal statutes are to be strictly construed.  AGO No. 51-53-167, dated November 9, 1951.  This construction of full crew laws is in accord with the view taken by the courts of other states.  State v. Nevada Northern Railway Co., 48 Nev. 436, 233 Pac. 531 (1925).  Nevertheless, under any rule of statutory construction, whether strict or liberal, the legislative intention, when clearly apparent, must prevail.  Public Hospital District v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954); 74 C.J.S. 954, § 401b (1), Railroads.

            Although we have been unable to find any case exactly in point on the first question, an analagous situation has been ruled upon by the Oregon supreme court.  In Oregon, California and Eastern Railway Co. v. Blackmer, 154 Ore. 388, 59 P. (2d) 694 (1936), the Oregon court construed section 2, chapter 162, General Laws of Oregon 1913 (presently codified as ORS 764:120) providing in part as follows:

            "It shall be unlawful for any . . . corporation, . . . operating any steam railroad or railway in the state of Oregon . . . to operate over its road or any part thereof in excess of fifteen continuous miles, or suffer or permit to be run over the same outside of yard limits, any freight train consisting of forty or more cars, exclusive of locomotive and caboose, with less than a full train crew consisting of six men, to wit: one engineer, one fireman, one conductor, two brakemen and one flagman . . . provided, however, that all main line local freight trains shall have a full crew consisting of six men, . . ."

            The question before the Oregon court was whether a freight train making one round trip a day was a main line local freight train.  In reaching its decision the Oregon court pointed out the purpose of the full crew law statute (154 Ore. 393):

            "In construing a statute, the court must, as far as possible, give effect to the intent of the legislature.  In determining the proper construction, which will carry out that intent, many questions must be taken into consideration, chief among which is: What mischief did the legislature intend to remedy?

            "It is apparent from the title of the act that its purpose was to safeguard the life and limb of the employees and passengers on trains.  The  [[Orig. Op. Page 4]] legislature evidently deemed it necessary, in order to accomplish this purpose, that when local freight trains were operating on main lines an additional flagman would be required to prevent a collision between the train on which he was working and another train travelling in the same direction.  The evidence in this case shows that to be the chief function of the extra flagman.  If, as in the instant case, there is only one train a day operating on the line in any direction at any given time, the employment of an additional flagman to protect against a rear-end collision is a wholly useless measure of precaution."

            This reasoning was approved in the later case of Union Pacific Railroad Co. v. Anderson, 167 Ore. 687, 120 P. (2d) 578 (1941), although certain portions of the earlier opinion were distinguished.

            It is evident that our legislature, in excepting from the provisions of the full train crew act a line or part of line where not more than two trains are run within twenty-four hours, deemed that in such situations the hazards and dangers which the law sought to protect against, and especially the dangers of rear-end collisions, would not be of such magnitude to require the presence of a third brakemen (additional flagman) on trains of twenty-five or more cars.  A so-called "turnaround" train is actually two train movements, one going each way.  If there are two such "turnaround" trains within twenty-four hours, the hazards and dangers, and especially the dangers of rear-end collisions, which the legislature sought to protect against, would be present.

            As a memorandum in the commission's file, which you have attached, indicates, a rear-end collision has in fact occurred within the last few years on this particular line between two of these "turnaround" trains in which one of the engineers was killed and two other employees injured.

            InState v. Nevada Northern Railway Co., 48 Nev. 436, 233 Pac. 531 (1925), the Nevada supreme court had before it an analagous situation under Nevada "full crew law," § 5, chapter 74, Laws of 1913, as amended by § 1, chapter 86, Laws of 1915, which provides in part as follows:

            "The provisions of this act shall not apply to or include . . . any line of railroad in this state on which but one train a day is operated each way; . . ."

            The railway company involved operated one passenger train each way every day and also operated one freight train one way every day.  In holding against the railway company's argument that they had not violated the statute because only one train went both ways every day, the Nevada supreme  [[Orig. Op. Page 5]] court stated (233 Pac. 532):

            ". . . While the statute is penal in nature, and is to be strictly construed, we are not authorized so to interpret it as to defeat the obvious purpose of the Legislature . . ."

            We conclude that a "turnaround" train is actually two trains because to hold otherwise would be defeating the obvious intent of the legislature.

            2. We have also been unable to find any case exactly in point on the second question, namely, whether each of the two railroads involved may run not more than two trains.  In the previously cited case of Oregon, California and Eastern Railway Co. v. Blackmer, 154 Ore. 388, 59 P. (2d) 694 (1936), the railroad company involved was jointly owned by the Southern Pacific Company and the Great Northern Railway Company and managed by each, alternating yearly.  The Oregon supreme court in its opinion pointed out that what the legislature had in mind was the nature of the line and not the ownership, stating (154 Ore. 395):

            "The legislature had in mind all the railroad lines in the state of Oregon and not the lines belonging to any particular railroad company."

            It is evident that the hazard of having trains of twenty-five or more cars running over a line or part of a line without a full crew is equally great whether or not a line is owned singly or jointly.  Our statute makes it unlawful for a railway company to either operate over its road or suffer or permit to be run over its road such trains without a full crew.  A railroad company operating over its line without a full crew, whether it uses that line by contract, lease or other arrangement, is as guilty as the company suffering or permitting such violation of the law.

            In summary, we conclude that if the railroad companies are each operating a "turnaround" train, that is, four trains over a common track within the statutory twenty-four hour period without a full crew of six men on trains of twenty-five or more cars, as required by the statute, they are acting unlawfully.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General

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