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AGO 1992 No. 27 -
Attorney General Ken Eikenberry

RAILROADS--CRIMES--NOISE--Obligation to Comply with Criminal Misdemeanor Statute, RCW 81.48.010

RCW 81.48.010 provides that it is a misdemeanor for an engineer driving a locomotive to fail to ring the bell or sound the whistle when approaching certain railroad crossings.  An engineer can comply with this statute by either ringing the bell or, in the alternative, sounding the whistle.  The engineer need not do both.

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                                                               November 13, 1992

HonorableMike Padden
State Representative, District 4
425 John L. O'Brien Building, MS 0608
Olympia, Washington  98504-0608           

                                                                                                Cite as:AGO 1992 No. 27

Dear Representative Padden:

            By letter previously acknowledged you asked:

            Is an engineer driving a locomotive required to sound the whistle under the circumstances described in RCW 81.48.010, or may the engineer only ring the bell to satisfy the provisions of said statute?

            The requirements of RCW 81.48.010 may be satisfied by either sounding the whistle or ringing the bell.  It is not necessary to do both.


            Your question concerns the interpretation of RCW 81.48.010 which provides:

                        Every engineer driving a locomotive on any railway who shall fail toring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or tocontinue the ringing of such bell or sounding of such whistle until such locomotive shall have crossed such road or street, shall be guilty of a misdemeanor.

(Emphasis added.)

            RCW 81.48.010 provides that it is a gross misdemeanor for an engineer to fail to "ring the bell or sound the whistle" in certain circumstances.  Your question focuses on the meaning of the word "or".  When a word is not defined in a statute, it should be given its usual and ordinary meaning, and it is appropriate to turn to the dictionary to determine this meaning.  On many occasions the court has turned to Webster's Third New International Dictionary.  Marino Property, Inc. v. Port of Seattle, 88 Wn.2d 822, 833, 567 P.2d 1125 (1977).  Webster's Third New International Dictionary defines "or" as follows:

            [U]sed as a function word to indicate (1) an alternative between different or unlike things, states, oractions (wolves or bears are never seen in that part of the country) (sick or well, he should not be here) (eat or go hungry is all the same to him); (2)choice between alternative things, states, or courses (will you have tea or coffee) (decide to study medicine or law) (to be, or not to be: that is the question -- Shak.)[.]

Webster's Third New International Dictionary 1585 (1981) (emphasis added).

            Under this definition of "or" there are alternative ways to comply with RCW 81.48.010.  The engineer may ring the bell or, in the alternative, sound the whistle.  The Washington Supreme Court has also had occasion to consider the meaning of the word "or".  InChilders v Childers, 89 Wn.2d 592, 575 P.2d 201 (1978), the court said:

            "When the term 'or' is used it is presumed to be used in the disjunctive sense, unless the legislative intent is clearly contrary."  1A C. Sands,Statutes and Statutory Construction § 21.14 n.1 (4th ed. 1972) (cases cited).  We have said "or" does not mean "and".  State v. Tiffany, 44 Wash. 602, 87 P. 932 (1906).

Id.at 595-96.  RCW 81.48.010 was enacted in 1909.  Laws of 1909, ch. 249, § 276, p. 975.  We have found nothing in the legislative history of the law or the wording of the statute that leads us to believe that RCW 81.48.010 is an exception to the usual rule that "or" is used in the disjunctive sense.  Accordingly, we conclude that an engineer may comply with RCW 81.48.010 by either ringing the bell or, in the alternative, sounding the whistle.

            Although this answers your question, we must add a cautionary note about the responsibility of a railroad to warn travelers approaching a railroad crossing.  While RCW 81.48.010 is a criminal statute, most of the decisions interpreting it involve personal injury cases.  This is because failure to comply with RCW 81.48.010 was negligence per se in Washington before the 1986 Legislature abolished the doctrine of negligence per se.  Laws of 1986, ch. 305, § 901, p. 1365; RCW 5.40.050.[1]  McKinney v. Port Townsend & P.S.R. Co., 91 Wash. 387, 392, 158 P. 107 (1916);Cox v. Polson Logging Co., 18 Wn.2d 49, 67-68, 138 P.2d 169 (1943).

            However, compliance with RCW 81.48.010 by either ringing the bell or sounding the whistle does not necessarily relieve a railroad of liability in the event of an accident.  The Supreme Court rejected this contention in Goodner v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co. 61 Wn.2d 12, 377 P.2d 231 (1962).  Goodner involved an accident at a railway crossing.  The railroad argued that the evidence proved conclusively that the engineer rang the bell and that the only dispute was whether the whistle had sounded.  Based on this, the railroad claimed that it had complied with the statute by ringing the bell and that RCW 81.48.010 "sets the limits of its obligation, and that compliance with the statute renders it free of negligence."  Id. at 17.  The Supreme Court rejected this position stating:

            [T]here are many other courts which take the view that a statute prescribing penalties for failure to give certain signals or warningssets only the minimum standard of conduct; and it is for the jury to decide in a given case whether the warnings given were adequate under the circumstances. . . .

                        The reasoning of these cases commends itself to this court. . . .

                        The common law requires that the warning given should be adequate under the circumstances. . . .It cannot be said as a matter of law that the sounding of the bell alone was an adequate warning under the circumstances.

Id.at 17-18 (emphasis added).  Based on this ruling, the Supreme Court affirmed a jury verdict that the railroad was negligent, even though the engineer complied with RCW 81.48.010 by ringing the bell.

            Therefore, we caution that the obligation of a railroad to give warning at a railway crossing is not limited by RCW 81.48.010.  If the engineer rings the bell or, in the alternative, sounds the whistle, there is no violation of RCW 81.48.010.  However, since the common law requires that railroads give adequate warning, under some circumstances it may be necessary to both ring the bell and sound the whistle.  This is true even though RCW 81.48.010 does not require both.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    WILLIAM B. COLLINS
                                    Senior Assistant Attorney General


    [1]RCW 5.40.050 states:

     A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.