Atchison, Topeka & Santa Fe Railway Co. v. Division of Industrial Safety

Opinion

BROWN (G. A.), P. J. By these proceedings petitioner, Atchison, Topeka and Santa Fe Railway Company, an interstate rail carrier, seeks by way of extraordinary relief (see Lab. Code, § 6308) to annul a special order of the Division of Industrial Safety of the State of California (hereinafter “Division”) which, as finally adopted, ordered petitioner to undertake an employee training program. The order provided: “When the nature of work performed by an employee in a hazardous location cannot be accomplished without training in the meaning of rules, regulations, and orders, the employer shall advise the employees of the meaning and consequences of failure to obey rules, regulations, and orders with sufficient time for their comprehension. The training shall include providing a thorough understanding of railroad operating [190]warning signals such as clearing the right of way of employees working on or about the track.”

Petitioner challenges the validity of the order on the ground that the Division lacks jurisdiction to make the order because (1) the Federal Railroad Safety Act has preempted the field of interstate railroad workers’ safety and (2) as between state agencies the authority over nonshop railroad employee safety is vested in the Public Utilities Commission.

Though it appears that there may be merit to the federal preemption contention (see Federal Railroad Safety Act (45 U.S.C.A. §§ 421, 431-441; National Ass’n. of Regulatory Util. Com’rs. v. Coleman (M.D.Pa. 1975) 399 F.Supp. 1275, 1278-1279; Donelon v. New Orleans Terminal Company (5th Cir. 1973) 474 F.2d 1108, 1112 (cert. den. 414 U.S. 855 [38 L.Ed.2d 105, 94 S.Ct. 157]); 49 C.F.R. § 217.11), we do not reach or decide that question because we have concluded that the Division was without authority to issue the challenged order.1

After appropriate notice and proceedings before the Division, the special order was issued as a result of a fatal injury to one of petitioner’s employees. The employee was working along petitioner’s tracks just south of where those tracks intersect Lacey Boulevard in the City of Hanford, California. The employee failed to remove himself from the , tracks as a train traveling between 45 and 50 miles an hour approached him sounding its whistle warning signal to clear the track, which the employee did not heed. The fatality occurred at or near quitting time on the employee’s first day of employment as a track man with petitioner.