South v. National R. R. Passenger Corp. (AMTRAK), 9664

• Decision Date: 20 March 1980
• Docket Number: No. 9664,9664
• Citation: 290 N.W.2d 819
• Parties: Billy Lee SOUTH and Delores South, husband and wife, Plaintiffs and Appellees, v. NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Burlington Northern Railroad, Inc., Leslie Roy Strom and S. M. Burdick as Public Special Administrator of the Estate of Howard W. Decker, Deceased, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 819

290 N.W.2d 819

Billy Lee SOUTH and Delores South, husband and wife Plaintiffs and Appellees, v. NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Burlington Northern Railroad, Inc., Leslie Roy Strom and S. M. Burdick as Public Special Administrator of the Estate of Howard W Decker, Deceased, Defendants and Appellants.

Civ. No. 9664.

Supreme Court of North Dakota.

March 20, 1980.

Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, Tacoma, Wash., and Ralph S. Oliver, Larimore, for plaintiffs and appellees; appearances by Ralph S. Oliver, Larimore, Alvin A. Anderson, and Edward S. Winskill, argued by Alvin A. Anderson and Edward S. Winskill, Tacoma, Wash.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellants; argued by Frank J. Magill, Fargo.

PAULSON, Justice.

This is an appeal by the defendants, National Railroad Passenger Corporation (AMTRAK), Burlington Northern Railroad, Inc., Leslie Roy Strom, and S. M. Burdick as Public Special Administrator of the estate of Howard W. Decker, deceased (herein collectively referred to as the "Railroad"), from the judgment of the Grand Forks District Court, entered March 21, 1978, and amended May 12, 1978, in which the court, upon jury verdicts, awarded the plaintiff Billy Lee South (herein referred to as "South") $948,552, including costs, and awarded the plaintiff Delores South $126,000, including costs. The Railroad also appeals from the order of the district court entered May 16, 1979, in which the court denied its motion for judgment notwithstanding the verdict or in the alternative for a new trial. We affirm.

An action was commenced by South for damages sustained as a result of a collision between a pickup truck, owned and driven by South, and the Railroad's train at the Barrett Avenue crossing in Larimore, North Dakota, on January 17, 1976, at approximately 6:20 a. m. South sustained serious injuries in the collision. He sued the Railroad for damages on a theory of negligence, and his wife, Delores, also sued the Railroad for damages allegedly incurred by the loss of her husband's consortium.

Although pertinent facts will be detailed as each issue is discussed, a brief recitation of the facts at this point should be helpful in acquiring an understanding of the issues.

Prior to the collision South was employed as a missile site superintendent. South lived in Larimore, and on the morning of the collision he, for the first time, was driving to work at a new missile site location to which he had been assigned. To drive to the old work site South cross the railroad tracks in Larimore at the Towner Avenue crossing, but in order to drive to the new work site South took a route which crossed the tracks at the Barrett Avenue crossing.

As South approached the Barrett Avenue crossing traveling south at approximately 20 miles per hour, a westbound AMTRAK passenger train was also approaching the Barrett Avenue crossing traveling at approximately 68 miles per hour. Both the train and South's pickup reached the crossing at approximately the same instant and the front of the train engine collided with the left front portion of South's vehicle.

The parties do not dispute that as one approaches the Barrett Avenue crossing traveling south his view of the tracks to the east is obstructed. The parties do dispute, however, the extent of the obstruction and the part such obstructed view played in the collision between South's pickup and the train. South's expert witnesses testified that under the conditions existing at the time of the collision it was impossible for South to see the train in time to stop before reaching the railroad tracks. South asserts that the train whistle did not blow a warning of the train's approach to the Barrett Avenue crossing, and several witnesses testified on South's behalf that although they were in a position to hear the train whistle at the Barrett Avenue crossing that morning they did not hear the whistle blow. South also introduced evidence to support his assertion that the railroad negligently maintained the crossbuck sign at the Barrett Avenue crossing.

The Railroad asserts that it was not negligent in the operation of its train and that the maintenance of the crossbuck sign was not a material issue because South was aware of the location of the railroad tracks running through Larimore. Several witnesses testified, on behalf of the Railroad, that the train whistle did blow a warning on the morning of the collision. The Railroad also attempted to prove that South was negligent in failing to ascertain the presence of the train and in failing to safely stop his vehicle prior to reaching the railroad tracks.

At the conclusion of the trial the jury returned a verdict in favor of South and his wife, Delores, against the Railroad. The jury, upon finding that the Railroad was 100 percent negligent and that South was not negligent, awarded general and special damages of $935,000 to South and $125,000 to Delores South. ¹

The Railroad has raised numerous issues on appeal, each of which we shall discuss in this opinion.

JURY INSTRUCTIONS CITY'S NEGLIGENCE

The Railroad asserts that the trial court committed reversible error when it refused to instruct the jury to consider the negligence of the city of Larimore for the purpose of apportioning negligence.

Upon initiating their lawsuit, the Souths joined the city of Larimore as a party defendant, alleging that the city negligently failed to sand Barrett Avenue and negligently failed to provide adequate advance warning signs. Prior to trial the city moved to dismiss the action against it, and the trial court granted the motion on the grounds that the allegations against the city involved discretionary governmental functions for which no action could be maintained and that the city had no affirmative duty to provide advance warning signs at the railroad crossing. The Souths filed a notice of appeal from the order dismissing the city as a party defendant but failed to submit timely briefs, and, as a result, this court dismissed the appeal. See, South v. National Railroad Passenger Corp., (AMTRAK), 260 N.W.2d 212 (N.D.1977). The Railroad did not file a cross-claim or a third-party claim against the city nor otherwise attempt to make the city a party to the proceedings.

Under the circumstances of this case the failure of the trial court to instruct the jury to consider the negligence of the city of Larimore, if such failure to instruct was error, was not prejudicial to the Railroad for reasons we shall explain herein. Therefore, we believe that it is both unnecessary and improvident to decide the issue of whether or not a jury should be instructed to consider the negligence of non-parties for apportionment purposes. The significance that a determination of this issue would have on damage awards in future personal injury cases necessitates that such determination be made in a case where the issues are more fully briefed and argued and where the determination of the issue would have an actual effect on the outcome of the case.

The failure to instruct the jury to consider the negligence of the city of Larimore, if error, is harmless and nonprejudicial to the Railroad because of the following three interrelated factors:

(1) The jury determined that the plaintiff South was not negligent;

(2) The jury determined that the Railroad was negligent and that such negligence was a proximate cause of the damages sustained by South; and

(3) Section 9-10-07, N.D.C.C., provides that when two or more persons are jointly liable "each shall remain jointly and severally liable for the whole award."

Consideration by the jury of the negligence of the city of Larimore could not have changed its determination that South was not negligent nor its determination that the Railroad was negligent. Therefore, pursuant to § 9-10-07, N.D.C.C., the Railroad is liable to the plaintiff for the whole award irrespective of any apportionment of negligence the jury may have made between the Railroad and the city of Larimore. Furthermore, such apportionment would have had no binding effect on the city of Larimore for contribution purposes because the city was not a party to the lawsuit. ²

We hold that the trial court's failure to instruct the jury to consider the negligence of the city of Larimore did not constitute prejudicial error.

JURY INSTRUCTIONS DUTY

The Railroad asserts that the trial court improperly and inadequately instructed the jury on the legal duties of a railroad and of a motor vehicle driver with regard to railroad crossings. The Railroad lists sixteen proposed instructions which the trial court refused to submit to the jury and asserts that the court committed prejudicial error by its refusal to submit them.

On review, jury instructions must be considered as a whole, and if, when so considered, they correctly advise the jury as to the law they are sufficient although parts of them standing alone may be erroneous or insufficient. State v. Unterseher, 255 N.W.2d 882 (N.D.1977). The trial court's refusal to give requested instructions is not reversible error when the instructions that are given fairly and adequately apprise the jury of the law. See, Wasem v. Laskowski, 274 N.W.2d 219 (N.D.1979); Eriksen v. Boyer, 225 N.W.2d 66 (N.D.1974).

We have reviewed the instructions submitted to the jury as well as the Railroad's proposed instructions which were refused by the trial court. We conclude that the submitted instructions fairly and adequately apprised the jury of the legal duties of the parties. Accordingly, the court did not commit error by its refusal to submit the Railroad's proposed instructions.

The Railroad also asserts, and more specifically, that the trial court erred when it submitted the following instruction to the jury:

"RAILROADS TO MAINTAIN SAFE CROSSINGS

"You are instructed that at the time of this accident and since 1890 the laws of the State of North...