I concur in the result reached but I believe the pronouncement made in the majority opinion to the effect that:
“ * * * the word ‘returning’, as employed in the statute, is broad enough to authorize the movement of a helper locomotive up to a distance of twenty-five miles in any direction from the point where it ceases to be a helper locomotive engaged in actual helper service. * * * ”
is not justified under any interpretation to which the language used could possibly be susceptible, and I believe it to be a dangerous pronouncement. The statute involved provides that:
“69-121. Train crews — Failure to use full crews — Penalty.—A single locomotive, or a single locomotive with its accompanying tender, when operated outside of the yard limits, shall be *16equipped with, and shall carry, a crew-consisting of not less than one (1) engineer, one (1) fireman, and one (1) conductor or flagman; provided, how ever, that this section shall not apply to helper locomotives going or returning a distance of twenty-five (25) miles.” (Emphasis supplied.)
A helper locomotive has a well-defined meaning in railroad vernacular. As testified by the witness Russell
“ * * * Well, the best definition I could give for a helper locomotive would be a locomotive that helped or assisted another locomotive in the handling of his train when such assistance was needed. * * * ”
Its character is determined by the kind of work it does. As soon as it loses its character as a “helper locomotive” it would have no right, under the law, to proceed beyond the yard limits of the station where it ceased to be a “helper locomotive,” without having aboard a crew as prescribed by the statute for such movement, to wit: one engineer, one fireman and one conductor or flagman. Thus, the pronouncement in the majority opinion that after it ceases to be a helper locomotive it may proceed a distance of twenty-five miles in any direction finds no authority in the statute.
The point I urged upon the majority was that neither of these engines ceased to be engaged in the service as “helper engines” when they were ordered transferred from helper service on the Williams-Grand Canyon branch to helper service on the main line between Williams and Ash Fork.
The statute expressly provides for going from Williams to Ash Fork for the purpose of assisting in pulling an eastbound train over the mountain to Williams as much so as it does for its subsequent return from Williams to Ash Fork after performing its initial helper service between those points.
In each instance the engine was ordered to continue in the “helper locomotive” service by proceeding to Ash Fork where helper service was required on eastbound trains. The fact that later emergencies may have arisen, requiring the use of one of the engines in the regular transportation of freight or passengers, had no retroactive effect upon its character as a helper locomotive at the time it was ordered from Williams to Ash Fork for helper service.
Judgment affirmed.