Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1979 No. 9 -
Attorney General Slade Gorton


The provisions of RCW 81.48.010, requiring trains to ring their bells or sound their whistles prior to crossing a traveled road or street, are not applicable where only a private road is involved.

                                                              - - - - - - - - - - - - -

                                                                   April 20, 1979

Honorable John Martinis
State Rep., 38th District
229 House Office Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1979 No. 9

Dear Sir:

            By recent letter you directed our attention to the following provisions of RCW 81.48.010:

            "Every engineer driving a locomotive on any railway who shall fail to ring 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 crossesa traveled road or street on the same level (except in cities), or to continue 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 supplied)

            You then requested our opinion as to whether this statute applies to all crossings (private and public) or to public crossings only.

            We answer your question in the manner set forth in our analysis.

             [[Orig. Op. Page 2]]


            Essentially the same issue as is raised by your question was before our state supreme court several years ago in Mulkey v. Spokane, Etc. Railroad Co., 65 Wn.2d 116, 396 P.2d 158 (1964), a civil action for wrongful death.  The decedent was killed when her automobile was struck by a train at a grade level crossing situated on private property; namely, a bean farm operated by the decedent and her husband.  At the trial, conflicting testimony was offered as to whether, and when (if at all) the train's whistle may have been blown prior to the accident.  The trial judge then initially instructed the jury that RCW 81.48.010,supra, applied even though the crossing involved only a private farm road and not a public street or highway.  Later, however, following the jury's return of a verdict for the plaintiff the judge apparently changed his mind and entered a judgment n.o.v. for the defendant railroad and, in the alternative, he also ordered a new trial.

            The plaintiff (husband of the decedent and administrator of her estate) then appealed and the supreme court, by a 6-3 majority decision, reversed, directing that the verdict be reinstated and a judgment be entered thereon.  In so doing, however, the majority opinion (written by Justice Hill) avoided passing upon the specific applicability of RCW 81.48.010 to the case, saying, at p. 123:

            "The trial judge became convinced that the statute did not apply to private roadways, such as the one with which we are here concerned, and that it was error to charge that a violation of the statutory requirement was negligence as a matter of law.

            "We do not need to determine, at this time, whether all private roadways are 'traveled' roads.  The adequacy of the defendants' warning must be determined from the circumstances relative to this particular road at this particular time and under these particular circumstances (the road being known by the engine crew to be in use by many people engaged in harvesting the bean crop).  In Goodner v. Chicago, M., St. P. & Pac. R. Co., supra, this court recently affirmed a jury verdict for the plaintiff in spite of a contention by  [[Orig. Op. Page 3]] the defendant railroad that it had satisfied its statutory duty by blowing its whistle or ringing its bell.  In that case, we stated that the warning in all railroad crossing cases should be adequate for the circumstances.

            "The circumstances, relative to this crossing, made it negligence, as a matter of law, for the engine crew to fail to give timely notice of the approach of the train by a whistled warning, whether or not the statute was applicable. . . ."

            Chief Justice Ott, joined by Justices Donworth and Weaver, dissented, voting, instead, to sustain the lower court's order granting a new trial on the ground that RCW 81.48.010 was inapplicable (thereby causing the trial judge's instruction to the contrary to have been in error).  In so opining the dissenting judges, after quoting the statute in full (as also set forth at the outset of this opinion), reasoned as follows:

            "This court has never defined the meaning or scope of the words 'traveled road' or had occasion to interpret the intent of the legislature in this regard.  The cited statute was enacted by the legislature in 1909, and reenacted in 1961.  It was taken nearly verbatim from a Minnesota law.  InCzech v. Great Northern Ry. Co., 68 Minn. 38, 41, 70 N.W. 791 (1897), the Supreme Court of Minnesota, in holding that the words 'traveled road' did not include a private roadway, said:

            "'. . .  We agree with counsel for the defendant that the statute requiring a bell to be rung or a whistle to be sounded at least 80 rods from the place where a railway crosses a "traveled road or street" on the same level does not apply to private farm crossings.  It only applies to public roads; that is, roads traveled by the public.  A mere farm crossing, designed exclusively for the convenience of the adjacent landowner, is never spoken of, either in the statutes or in common speech, as a "road."  Probably the object in using the term "traveled road," instead of "highway" or "public highway," was to include roads actually used and traveled  [[Orig. Op. Page 4]] as public highways, without regard to whether they have been legally laid out or dedicated as such.'

            "This interpretation of the Minnesota statute by the Supreme Court of Minnesota was announced prior to our 1909 legislative session.  InJackson v. Colagrossi, 50 Wn.(2d) 572, 575, 313 P.(2d) 697 (1957), the late Judge Foster, speaking for the court, said:

            "'. . . By an unbroken line of decisions only recently reaffirmed, this court is committed to the prevailing rule of construction that the adoption of a statute of another state likewise carries with it the construction placed upon such statute by the courts of that state. . . .'

            "It seems evident to me that the legislature of this state intended 'a traveled road' to mean one over which the public has a right to travel, whether such right was acquired by prescription or otherwise.  I do not believe that, by the enactment of RCW 81.48.010, supra, the legislature intended that an engineer should be required to ring a bell or sound a whistle 'at least eighty rods' from where the railway crosses each one of the thousands of private roadway easements across railroad rights of way in this state.  Had the legislature intended the words 'traveled road' to encompass private easements, it would have included those descriptive words in the statute."

            Where, then, does this leave us today insofar as your question is concerned?  Of course, had the majority opinion in the Mulkey case squarely held the statute to be applicable to a crossing involving a private road, that decision would be determinative in spite of the dissenters' well reasoned views to the contrary.  But, as above indicated, the majority did not so hold‑-even though the dissenters proceeded from the premise that they did.1/   Therefore, we are not precluded by the ruling of the majority from adopting the construction given to the statute by the three dissenters.

             [[Orig. Op. Page 5]]

            Based upon the well-established principle of statutory construction which was relied upon in the dissenting opinion in Mulkey, as earlier stated by the court inJackson v. Colagrossi, 50 Wn.2d 572, 575, 313 P.2d 697 (1957), we, likewise, are of the opinion that RCW 81.48.010 does not apply in the case of a railroad crossing over a strictly private road.2/   Therefore, the criminal sanction for a misdemeanor which is called for by the statute will not, in our judgment, lie where only a private road is involved.

            At the same time, however, we most certainly do not mean to imply that a civil action for damages may not be predicated upon the failure of a warning whistle to be blown by a train which is about to cross a private road for, on that count, the majority opinion the Mulkey case, supra, is clear.  The only point for which the instant opinion of this office should be taken to stand in such a case is that any such civil liability must be predicated upon ordinary negligence principles rather than upon the doctrine of negligence per se.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/The opening paragraph of Chief Justice Ott's dissenting opinion, not previously here quoted, read as follows:

            "The trial judge granted a new trial for the reason that he had erroneously instructed the jury that the respondent company had a statutory duty 'to ring the bell or sound the whistle' at a railroad crossing used exclusively as a private easement for the convenience of the adjacent farm operation.  The majority hold that such a statutory duty exists.  I do not agree."

2/Cf., AGO 63-64 No. 94, in which this office previously applied the same well-established principle of statutory construction in another context; see also, AGO 1976 No. 14 and AGO 1971 No. 33.