RAILROADS -- STATUTORY DUTY TO FURNISH SANITARY CUPS AND SANITARY ICE‑COOLED DRINKING WATER FOR LOCOMOTIVES AND CABOOSES

RAILROADS -- STATUTORY DUTY TO FURNISH SANITARY CUPS AND SANITARY ICE‑COOLED DRINKING WATER FOR LOCOMOTIVES AND CABOOSES

Railroad company must see that sanitary cups and ice‑cooled drinking water are placed aboard each locomotive and caboose which it operates.

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                                                                     July 2, 1953

Honorable Gerald D. Dixon
State Senator, 28th District
3726 South Tacoma Avenue
Tacoma, Washington                                                                                                                Cite as:  AGO 53-55 No. 80

Dear Senator Dixon:

            You have requested the opinion of this office on a question which may be stated as follows:  Does the law require a railroad company to place sanitary cups and ice‑cooled drinking water on each locomotive and caboose it operates, or does it require only that these supplies shall be made available to the crews?

            In our opinion the law charges the company with a duty to see that the indicated supplies are placed on each locomotive and caboose.

                                                                     ANALYSIS

            The controlling statute is RCW 81.44.085 (section 2, chapter 66, Laws of 1951), which provides in relevant part as follows:

            "Every person operating a common carrier railroad in this state shallequip each locomotive and caboose * * * with a first aid kit * * *.

            "Each locomotive and caboose shall also be furnished with sanitary cups and sanitary ice‑cooled drinking water."  (Emphasis supplied)

             [[Orig. Op. Page 2]]

            The word "equip" in the paragraph first quoted above makes it clear that the company must put first aid kits on each engine and caboose.

            The question here is whether the duty of the company as described by the second paragraph of the statute is discharged when the supplies described are placed at some point from which train crews using engines and cabooses may pick them up and place them on board.

            There is a qualitative difference between a single piece of equipment and supplies which must be replenished from time to time; the term "equip" could not be used accurately in relation to the latter.  But the word "also" as underscored in the second paragraph quoted above indicates that the legislature viewed the supplies in the same light, and intended that they should also be placed on board.  We understand that no question has been raised as to water and cups, and that the company does see that these are put on engines and cabooses.  We can see no logical difference between those supplies and ice.

            At the center of the question lies the definition of the word "furnished" as used in this context.  Black's Law Dictionary (3rd ed.) 830, says this:  "To supply; provide; provide for use; deliver * * *" Webster's New International Dictionary (2d ed. Unabridged) 1021, gives us:

            "2. To provide for; to provide what is necessary for; to satisfy the needs of; equip; fit out or fit up; as, to furnish an expedition, a table; to furnish a man for a journey * * *"

            It may be said that since the particular engine or caboose does not require the supplies in question they are in fact to be furnished to the crews.  But this avoids the essential problem, which is; "Where must they be furnished?"  The answer is found in the statute: (at) each locomotive and caboose.  If synonyms from the quoted definitions are read into the statute the result is the same.  Thus, "each locomotive and caboose shall also besupplied with * * * "each locomotive and caboose shall also be provided with * * *."

            Research has disclosed no case directly in point, but a few representative decisions may be cited as illustrative of judicial construction upon the word "furnish."  Our own Supreme Court, inKolosoff v. Turri, 27 Wn. (2d) 81, held that "furnish" meant "deliver" in the case of a title policy, after reviewing numerous cases from other states.  The Court of Appeals for the Ninth Circuit decided that where a buyer was to receive fish on a particular pier, and the  [[Orig. Op. Page 3]] seller was to "furnish" them, the delivery or availability of the fish at any other point did not fulfill the contract.  Alaska Fisherman's Packing Co. v. Chin Quong, 202 Fed. 707.  Under the Merchant Marine Act of 1920, 46 U.S.C.A. sec. 971, a maritime lien is given to persons "furnishing * * * supplies * * * to any vessel * * *."  InThe Denelfred, 59 F. (2d) 213, at 214, the court said:

            "* * * It is settled law that necessaries are 'furnished' only if and when they are either actually delivered on board of, or at the side of, a vessel, or else delivered to its owner or his authorized agent for the purpose of and followed by, delivery to such vessel."  (citing many authorities)

            InTalbott v. Caudill, 248 Ky. 146, 58 S.W. (2d) 385, it was stated that although water is in the pipes of a courthouse, a jailer "furnishes" the water when he makes it available in the courtroom where it is to be used, if only by turning a faucet.

            The Code of Georgia, Ann., contains the following sections:

            "18-9907.  A violation of section 18-211, requiring railroad companies to keep an adequate supply of good, pure drinking water in each passenger car at all hours, * * * shall be a misdemeanor.

            "18-9908.  Any conductor or agent of a railroad, who, after being requested by a passenger tofurnish a sufficient supply of water to the passengers in each car, * * * shall pass any depot or station without so doing, may be indicted in any county through which the railroad of which he is agent or conductor runs, and shall be punished as for a misdemeanor."  (Italics added)

            In each of the foregoing situations, the term "furnish", when used in connection with a specific place or vessel, must be taken to mean "deliver to the place (or vessel or car) described".  To the same effect isDelaware, L. & W. R. Co. v. Board of Public Utility Com'rs, 83 N.J.L. 212, 84 Atl. 702, in which the court upheld an order of the board which directed

             [[Orig. Op. Page 4]]

            "* * * the various railroad companies to provide and keep on all passenger trains operated by them within the state upon which drinking water is furnished for public use individual drinking cups, or a glass in sanitary condition which may be procured by the passenger without cost."  (Emphasis supplied)

            The term "furnish" is used in various forms at least nine times in that opinion with the same meaning.

            We express no opinion upon the validity of RCW 81.44.085 as an exercise of the police power of the state; but we conclude that as written it requires that the company must see that sanitary cups and sanitary ice‑cooled drinking water are placed aboard each locomotive and caboose operated by the company.  The designation of personnel to fulfill the requirement is a matter which the company and its employees must decide by contract.

            We hope that the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General