Valles v. Union Pac. R. Co.

• Decision Date: 21 December 1951
• Docket Number: 7764,Nos. 7763,s. 7763
• Citation: 72 Idaho 231,238 P.2d 1154
• Parties: VALLES et ux. v. UNION PAC. R. CO. et al. VALLES v. UNION PAC. R. CO. et al.
• Court: Idaho Supreme Court

Page 1154

238 P.2d 1154

72 Idaho 231

VALLES et ux. v. UNION PAC. R. CO. et al.

VALLES v. UNION PAC. R. CO. et al.

Nos. 7763, 7764.

Supreme Court of Idaho.

Dec. 21, 1951.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson and E. H. Casterlin, Pocatello, and Ryan & Ryan, Weiser, for appellant Railroad.

Hawley & Marcus, Boise, for defendants Nakamura.

Donart & Donart, Weiser, and Welker & Daniel, Payette, for respondents.

GIVENS, Chief Justice.

In the western portion of Weiser, the four parallel tracks of appellant Railroad Company extend approximately east and west. The northernmost track is a siding; the second track from the north is a passing or side track; the third is the main line, and the fourth track from the north is another passing or side track.

A little after 6 o'clock in the morning of May 29, 1950, Saturo Nakamura, driving his automobile, approached these tracks from the north. In the back seat of his car were four young Mexicans, brothers and sisters, two boys and two girls, whom he had just employed at a transient Labor Camp situated a short distance north of the tracks and along the road (West 9th Street) upon which he was traveling south en route to his farm south of the tracks. A westbound train pulled out in front of him on the second track from the north. He waited until this train was--as he estimated--about half a block to the west, and then started slowly across the four tracks. He testified he looked to the right and left and saw no approaching train and heard no whistle blowing or bell ringing and came onto the main line track. As he did so, appellant's Streamliner from the west on the main line track, i.e., third from the north, struck the automobile hurling it some forty to fifty feet across the fourth track from the north, i.e., the most southerly track. Nakamura and three other occupants were thrown out of the automobile and one remained therein. The two girls and one boy were killed and the other boy, Eligio Valles, and Nakamura were severely injured.

The parents of the youths brought one suit against appellant Railroad Company and Nakamura and his associates, as engaged in a joint enterprise, and so admitted by the defendants Nakamura, No. 4702 in the District Court, on four causes of action, $20,336.15 for each one of their decedent children and $5,000 for Eligio's permanent, partial disablement which decreased his ability to contribute to their support; and $1,500 hospital and medical fees. Suit No. 4706 was instituted by his father as guardian ad litem of Eligio for damages suffered by him in the amount of $20,000. Saturo Nakamura cross-complained against the Railroad for damages suffered by him in the sum of $5,000.

The complaints alleged the Railroad Company was negligent in not sounding any whistle or ringing any bell or giving any other audible warning of the approach of the Streamliner: '* * * though the engineer in charge of said train well knew that it would cross said intersection almost immediately after the last car on said train going in the opposite direction would cross said intersection; * * *.' and that Nakamura, driver of the automobile, was negligent: '* * * without first looking to see whether or not there was any train traveling on the main line of said railroad tracks, being the track immediately south of the one upon which said west bound train was traveling, carelessly and negligently and without regard for the safety of said employees and passengers, drove the car by him so operated onto said main line track directly in front of the oncoming train which was traveling in an easterly direction at a high and excessive rate of speed; that if said defendant, Saturo Nakamura, had looked to his right before driving onto said main line track, he could and would have observed the approach of said train so traveling in an easterly direction, but said defendant, Saturo Nakamura, in so driving said automobile, drove the same onto said main line track carelessly and negligently and without first looking to his right to ascertain whether he could safely proceed onto said track, and as a result thereof the car by him so driven was struck by the engine of said east bound train with terrific force and violence, * * *; * * *.'

The jury first rendered these verdicts in favor of respondents:

'No. 4702. We, the Jury impaneled to try the above-entitled action, do find for the plaintiffs, and against the Union Pacific Railroad Company, Saturo Nakamura, Kakuju Nakamura, and Mitsuru Nakamura, and assess plaintiffs' damages as follows:

'On the first cause of action, the sum of $5336.15.

'On the second cause of action, the sum of $5337.20.

'On the third cause of action, the sum of $5353.20.

'On the fourth cause of action, the sum of $3973.45.'

'No. 4702. We, the Jury impaneled to try the above-entitled action, do find for the plaintiffs, and against Saturo Nakamura, Kakuju Nakamura, and Mitsuru Nakamura, and assess plaintiffs' damages as follows:

'On the first cause of action, the sum of $1334.04.

'On the second cause of action, the sum of $1334.30.

'On the third cause of action, the sum of $1338.30.

'On the fourth cause of action, the sum of $993.36.'

and as follows in No. 4706:

'We, the Jury impaneled to try the above-entitled action, do find for the plaintiff, and against Saturo Nakamura, Kakuju Nakamura, and Mitsuru Nakamura, and assess plaintiff's damages in the amount of $993.36.'

'We, the Jury impaneled to try the above-entitled action, do find for the plaintiff, and against the Union Pacific Railroad Company Saturo Nakamura, Kakuju Nakamura, and Mitsuru Nakamura, and assess plaintiff's damages in the amount of $3973.45.'

The Court advised the jury he could not accept the above verdicts for respondents because they amounted to double verdicts or awards. The first verdict in Suit No. 4702 was against both defendants, the second against only one; consequently, it was impossible to determine whether the total in the first included the amount of the second, or the second amount was in addition no the first. The same situation existed, in substance, in Suit No. 4706. Whereupon, the jury retired and returned verdicts as follows in Suit No. 4702:

'We, the jury impanelled to try the above entitled action, do find for the plaintiffs and against the Union Pacific Railroad Company, and assess plaintiffs' damages as follows:

'On the First Cause of Action, the sum of $4002.11

'On the Second Cause of Action, the sum of 4002.90

'On the Third Cause of Action, the sum of 4014.90

'On the Fourth Cause of Action, the sum of 1125.00'

'We, the jury impanalled to try the above entitled action, do find for the plaintiffs and against Saturo Nakamura, Kakuju Nakamura and Mitsuru Nakamura, and assess plaintiffs' damages as follows:

'On the First Cause of Action, the sum of $1334.04

'On the Second Cause of Action, the sum of 1334.30

'On the Third Cause of Action, the sum of 1338.30

'On the Fourth Cause of Action, the sum of 375.00'

And in Suit No. 4706 as follows:

'We, the jury impanelled to try the above entitled action do find for the plaintiff and against the Union Pacific Railroad Company, and assess plaintiff's damages in the amount of $618.36.'

'We, the jury impanalled to try the above entitled action, do find for the plaintiff and against Saturo Nakamura, Kakuju Nakamura and Mitsuru Nakamura, and assess plaintiff's damages in the amount of $1855.08.'

The jury found against Saturo Nakamura on his cross-complaint, evidently on the conclusion he was guilty of contributory negligence.

Respective judgments in the two cases were entered, each judgment, however, being against both defendants but separating the amounts as against the defendants, as indicated in the verdicts. Thereafter, the Nakamuras paid the portion of the judgments against them. After such payment, appellant requested plaintiffs to satisfy the judgments against appellant on the theory payment by the Nakamuras and satisfaction of the portion of the judgments against them, discharged the entire judgments. Plaintiffs refused to so comply and appellant requested the trial Court to so order. Upon the Court's refusal, appellant appealed from the judgments and the Court's orders, which are the subject matter of the controversy now before us.

No objections were made by either party to the forms of the final verdicts or the manner in which they were rendered at the time they were returned by the jury. Vide, Judd v. Oregon Short Line R.R. Co., 55 Idaho 461, at page 479, 44 P.2d 291.

Upon the argument of the case, appellant conceded the two defendants were independent tort feasors.

Witnesses for appellants testified the whistle on the Streamliner was blown at various points as it was approaching the crossing. Witnesses for respondents testified they were in positions to hear and listen, did so, and heard no bell or whistle. There thus was a conflict in the evidence and this question was for the jury. Hobbs v. Union Pacific R.R. Co., 62 Idaho 58, at page 64, 108 P.2d 841; 162 A.L.R. 105n. Thus, and on the hereinafter analysis as to proximate cause, the learned trial Court properly denied appellant's motion for nonsuit and directed verdicts.

Appellant contends, nevertheless, as its first assignment of error now before us, that Saturo Nakamura was guilty of contributory negligence in that he did not stop look and listen when in a place of safety and that he could and should have seen the Streamliner. Appellant does not particularly stress that Saturo Nakamura's contributory negligence was imputed to respondents' decedents or Eligio, but perhaps sufficiently so presents it that we should dispose of it. The Court instructed that Nakamura's contributory negligence, if any, was not imputed to decedents or Eligio (Instr. No. 10), but that decedents and Eligio were not absolved from exercising care for their own safety (Instr. No. 14).

Decedents and Eligio were employees of Saturo Nakamura and his...