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Bob Ferguson

AGO 1952 No. 445 -
Attorney General Smith Troy


Under RCW 81.40.010 full crew statute, a passenger, mail or express train consisting of four cars or more operating within the yard limits as a train on its run must carry a full passenger crew.

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                                                               December 19, 1952 

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Court House
Spokane, Washington                                                                                                             Cite as:  AGO 51-53 No. 445

 Dear Sir:

            We acknowledge receipt of your letter of December 17, 1952, in which you, in effect, propound the following question:

             Does the "Full Crew Law," Rem. Rev. Stat., § 10486, RCW 81.40.010, apply to a train consisting of four or more care within the yard limits, said train being owned by a person otherwise within the purview of the statute?

             It is our conclusion that under RCW 81.40.010 a passenger, mail or express train consisting of four or more cars operating within the yard limits as a train on its run must carry a full passenger crew.


             RCW 81.40.010 reads:

             "It is unlawful for any person operating any railroad or part of any railroad in the state, and engaged, as a common carrier, in the transportation of freight or passengers, to operate over its road or any part  [[Orig. Op. Page 2]] thereof, or permit to be run over its road outside of the yard limits, any passenger, mail or express train consisting of four or more cars with less than a full passenger crew consisting of five men, to wit: An engineer, fireman, conductor, brakeman and a flagman, the flagman to have had at least one year's experience in train service, and none of the crew shall be required or permitted to perform the duties of train baggagemen or express messenger while on the road."

            The controlling language, and that with which we are concerned, is "to operate its road or any part thereof, or permit to be run over its road outside of the yard limits."  The legislature, it would seem, envisioned under the first clause the operation of a train by a proprietary railroad, and under the second clause the operation of a train by a lessee railroad company.

             Yard limits for the purpose of this section is analogous with the term "yard."  A "yard" has been long recognized as an appurtenance, though necessary, but incidental, to the operation of a railroad.

             Further, certain operations and movements within the yard have been recognized by legislatures in many states as things separate and distinct from operations on the road.  This is evidenced by the enactment of what is commonly called a "full switching crew" act.

             Though a yard is part of a railroad system, we do not believe that the term as generally used connotes "road."  However, as we will later indicate, there are times when "yard" means "part of the road."  It is so axiomatic that penal statutes are to be strictly construed that authority need not be cited.

             As already indicated, it is common knowledge that multitudinous operations of various character occur within the yard limits.  Our primary concern here is to determine whether or not any of those operations fall within the scope of our "full crew" act.

             When does a collection of cars and an engine become a train?  In the case ofBrotherhood of Railroad Trainmen v. Public Service Commission, 73 Pa. Super. Ct. 523, the court held that the "full crew" law of Pennsylvania did not apply to the movement of thirty-five or more cars, coupled together over track devoted  [[Orig. Op. Page 3]] solely to yard purposes, over which no through or local trains passed, and where the movement is made under the direction of a local yardmaster, without cabooses, marker or train orders.  The court found that such a collection of cars must be regarded as a switching movement, and not a train within the meaning of the act.  The Pennsylvania "full crew" law contained the clause "over its road or any part of its road."

             The Supreme Court of the United States, in the case ofU. S. v. Erie Railroad, 237 U.S. 402, said, in interpreting the Safety Appliance Act of March 2, 1893, 27 Statutes at Large 531:

             "* * * As the context shows, a train in the sense intended consists of an engine and cars which have been assembled and coupled together for a run or trip along the road.  When a train is thus made up and is proceeding on its journey it is within the operation of the air-brake provision.  But it is otherwise with the various movements in railroad yards whereby cars are assembled and coupled into outgoing trains and whereby incoming trains which have completed their run are broken up.  These are not train movements but mere switching operations, and so are not within the air-brake provision.  * * *"

             We believe the controlling test in the application of a "full crew" act lies in the essential nature of the work done.

             Whenever a train is transferred from one yard to another over the main track of the company it loses its character as a purely yard operation.

             "To hold that all the movements of cars in railroad yards require a compliance with the air brake act (Safety Appliance Act) or of the full crew act would lead to situations that would be not only inconvenient but practically impossible and the legislators are presumed not to intent that such results should follow."  Brotherhood of Railroad Trainmen v. Public Service Commission, supra.  (Parenthesis added)

              [[Orig. Op. Page 4]]

            We therefore believe that during switching and the making up of a train there is no operating over the road or any part thereof as contemplated by our statute.

             However, once a train is made up and moved into position to take on passengers, mail or express, we are of the opinion that as the train departs from its then position on its run it is a train operating on its road or a part thereof, and continues to be such a train until it reaches its terminal and therefore must be manned as provided in RCW 81.40.010.

 Very truly yours,
Attorney General 

Assistant Attorney General