Western Pac. R. Co. v. State

• Decision Date: 06 March 1952
• Docket Number: No. 3668,3668
• Citation: 241 P.2d 846,69 Nev. 66,45 A.L.R.2d 429
• Parties: , 45 A.L.R.2d 429 WESTERN PAC. R. CO. v. STATE.
• Court: Nevada Supreme Court

Page 846

241 P.2d 846

69 Nev. 66, 45 A.L.R.2d 429

WESTERN PAC. R. CO. v. STATE.

No. 3668.

Supreme Court of Nevada.

March 6, 1952.

Woodburn, Forman & Woodburn and Gordon Thompson, all of Reno, for appellant.

W. T. Mathews, Atty. Gen., George P. Annand, Robert L. McDonald, Thomas A. Foley, Deputy Attys. Gen., and Jack Streeter, Dist. Atty., Washoe County, and John C. Bartlett, Deputy Dist. Atty., Washoe County, Reno, for respondent.

MERRILL, Justice.

The Western Pacific Railroad Company has appealed from judgment of the trial court that the state recover the statutory penalty of $500 for violation of the Nevada 'full crew law' and from order of that court denying motion for new trial. The applicable statute provides (§ 6318, N.C.L.1929): 'It shall be unlawful for any person, firm, company or corporation engaged in the business of common carrier, operating freight and passenger trains, or either of them, within or through the State of Nevada, to run or operate, or permit or cause to be run or operated, within or through this state, along or over its road or tracks, other than along or over the road or tracks within yard limits, any freight or passenger train consisting of two cars or less, exclusive of caboose and engine and tenders, with less than a full crew consisting of not less than four persons, to wit, one engineer, one fireman, one conductor and one brakeman, who will act in the capacity of flagman.'

On January 18, 1950, the company operated over its tracks from Elko, Nevada, to Portola, California, a Budd railroad Diesel car manned by a crew of three: a conductor, an engineer and a brakeman-flagman. The car is an 85-foot self-propelled, Diesel-powered, single-car passenger unit, having a baggage compartment and accommodations for 90 passengers. This action was brought by the state for failure of the company to provide a fireman pursuant to the provisions of the quoted section. The company contends that the full crew law and, specifically, the word 'train' as there used may not properly be construed to apply to operation of the Budd car. Such is our view.

The question is one of statutory construction. The full crew law was passed March 12, 1913. It must be accorded a meaning compatible with the conditions and circumstances them existing and 'the plain, evident policy and purview of the act'. Ex parte Iratacable, 55 Nev. 263, 282, 30 P.2d 284, 290. 'We must ascertain the evils sought to be remedied.' Escalle v. Mark, 43 Nev. 172, 175, 183 P. 387, 388, 5 A.L.R. 1512. 'The meaning of words used in a statute may be sought by examining the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it. The entire subject matter and the policy of the law may also be invoked to aid in its interpretation, and it should always be construed so as to avoid absurd results.' Ex parte Siebenhauer, 14 Nev. 365, 368. 'The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute, and the intent, when ascertained, will prevail over the literal sense.' State ex rel. O'Meara v. Ross, 20 Nev. 61, 63, 14 P. 827, 828; State ex rel. Hinckley v. District Court, 53 Nev. 343, 352, 1 P.2d 105, 106. 'It is a cardinal rule of construction that the purpose of a law is to be kept in view and the statute given a fair and reasonable construction with a view to effecting its purpose'. Ex parte Douglass, 53 Nev. 188, 191, 295 P. 447, 448.

With reference to the full crew law of Nebraska, the supreme court of that state has said, Bressler v. Chicago & N. W. Ry. Co., 152 Neb. 732, 42 N.W.2d 617, 619: '* * * the act provides that passenger trains, depending on their size, must always be manned and operated by a certain number of employees classified according to the duties they perform. By so doing the Legislature recognized that in order to secure the maximum of safety in the operation thereof certain duties must always be performed by someone qualified to perform them. The act does not actually specify what these duties are but, in the absence thereof, it can only mean such duties as are generally associated with such positions by custom and practice.'

So here, our legislature in 1913 may be said to have recognized that in the proper operation of a railroad certain duties must in the interest of public safety be regularly performed; that they must be performed by qualified persons; that a sufficient crew must be provided so that one member need not assume the duties ordinarily assigned to another where such assumption would interfere with the regular performance of his own essential duties. By the language which it used the legislature indicated that it was the performance of essential duties with which it was concerned.

The company contends that in the operation of the Budd car no duties remain to be performed by a fireman. This, we feel, is the sole issue to be determined. To impute to the legislature an intent to require employment of a fireman in the absence of such duties would in effect be to impute an intent that these duties continue to be performed notwithstanding conditions rendering them wholly unnecessary. In the light of the language used and since the express purpose of the act is public safety, this would indeed be an absurd result. In addition, such construction would appear to be so clearly unreasonable as to render the act invalid in exceeding the police power of the state.

Testimony in the record before us has dealt with the duties of the railroad fireman in some detail. The duties divide themselves into two classes: fueling and lookout.

As to the first: The steam, source of the propulsion power of the steam locomotive, is generated in a horizontal boiler from water brought to the boiling point by the application of heat from a fire maintained in a fire box located at the rear of the boiler and opening into the cab of the locomotive. Historically, wood was the first fuel used to feed the fire, later supplanted by coal and, still later in some locomotives, by oil. To furnish a supply of the fuel, a vehicle known as a tender is towed behind the locomotive. The duties of the fireman in wood or coal-fired locomotives are to feed the fuel to the fire, and to make sure that there is a proper level of water in the boiler. Around the turn of the century mechanical progress had developed an automatic stoker to bring the fuel to the fire box from the tender, eliminating the necessity for manual stoking by the fireman. With the development of the oil-fired locomotive the fireman's primary duty is operation of a valve controlling the flow of the fuel into the box. With both the automatic stoker and the oil-fired locomotive it is necessary for the fireman to check the fire for even burning and his duties relative to the water level and steam pressure continue.

As to the second: The location of the steam boiler to the front of the cab creates an obstruction to the vision of anyone occupying the cab. The engineer's station is on the right of the cab and without deserting his controls it is impossible for him to observe the left side of the track or of the train. The fireman thus is given the responsibility of being 'the eyes and ears of the engineer on...