Cartwright v. New Orleans Ry. & Light Co.

• Decision Date: 04 June 1912
• Docket Number: 18,993
• Citation: 131 La. 210,59 So. 124
• Parties: CARTWRIGHT v. NEW ORLEANS RY. & LIGHT CO. et al
• Court: Louisiana Supreme Court

59 So. 124

131 La. 210

CARTWRIGHT v. NEW ORLEANS RY. & LIGHT CO. et al

No. 18,993

Supreme Court of Louisiana

June 4, 1912

Rehearing Denied June 28, 1912.

Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.

Action by Florence Cartwright against the New Orleans Railway &amp Light Company and others. Judgment for plaintiff, and defendants appeal. Amended and affirmed.

Hall Monroe & Lemann, for appellant New Orleans Ry. & Light Co.

Henriques & Duchamp, for appellant Barrett.

Frank B. Davenport, for appellee.

OPINION

LAND, J.

This is a suit for damages for personal injuries sustained by the plaintiff in a collision at a street intersection between an electric car and a carriage in which she was riding.

Plaintiff alleged that the carriage belonged to the defendant John A. Barrett, and that she was a passenger therein for hire, and that the collision was occasioned by the negligence of the driver of the carriage in attempting to cross the street in advance of the rapidly approaching electric car, and by the negligence of the motorman in approaching Third street at a high and unlawful rate of speed, without sounding his gong, or giving other warning, and in not having his car under control, and not paying attention to the sign, "Go slow," on the downtown side of said street.

The defendant railway company, after pleading the general issue, admitted the collision, denied negligence on its part, and charged that the accident was due solely to the gross negligence of the driver of the carriage in driving rapidly on the street car track, without stopping or checking his horses, or taking any precautions to ascertain the presence of the car. The defendant Barrett pleaded the general issue.

The case was tried before a jury, which, by vote of nine to three, found a verdict for $ 700 against the defendant railway. Judgment was rendered pursuant to the verdict, and in favor of the defendant Barrett, rejecting the plaintiff's demand against him with costs.

The railway company rules the plaintiff and its codefendant to show cause why a new trial should not be granted. The rule was heard and made absolute, and the court ordered that the judgment be set aside and that a new trial be granted. The trial judge gave for his ruling the following reasons:

"The evidence shows that the negligence of the driver of the carriage owned by John A. Barrett caused the accident; if not the sole cause, it contributed to the accident.

"The court could understand the jury holding both the railroad and Barrett negligent, and condemning both in solido or rendering a verdict against Barrett alone. If such a verdict had been rendered, the court would not have set the verdict aside. The verdict against the railroad company alone is clearly contrary to the evidence, the law, and the charge given to the jury. The defendant the New Orleans Railway & Light Company is entitled to a new trial, and a new trial is granted."

The new trial was granted on February 8, 1911, and the cause was refixed for trial. On May 29, 1911, the day on which the case was called for trial, counsel for Barrett, suggesting that no motion for a new trial had been filed by the plaintiff, and that the judgment in favor of Barrett had become final and should be signed, moved that he be dismissed from further participation in the trial. The motion was refused.

On the second trial there was a verdict and judgment in favor of the plaintiff for $ 700 against both defendants in solido. As on the former trial, the verdict was found by nine jurors.

Both defendants have appealed. Plaintiff has filed a motion to dismiss the appeal of Barrett, but this motion is not referred to in the brief of plaintiff's counsel, and it is without merit.

The first question to be considered is as to the alleged error of the judge in granting a new trial of the cause as between the plaintiff and the defendant Barrett. It is well settled that an application for a new trial is in time, after three judicial days, if judgment has not been signed. Marchand v. Noyes, 33 La.Ann. 882. It is equally well settled that judges may ex officio grant new trials within the same delays allowed to parties to move therefor. Culverhouse v. Marx, 38 La.Ann. 667; State v. Blackman, 110 La. 266, 34 So. 438. The judgment had not been signed, and hence it was not too late for the judge to grant a new trial on his own motion.

The accident happened on December 24, 1909, about 5 o'clock in the evening. Plaintiff and three other ladies occupied the same carriage, which with a number of other carriages had constituted a funeral procession to one of the cemeteries. All of these carriages were returning by way of Third street, which was paved with asphalt, and furnished a convenient roadway for vehicles passing across that section of the city. At the intersection of Third and Baronne streets, carriages and other vehicles were compelled to cross the tracks of the defendant railway. At this point the view from both streets is obstructed by buildings, and the danger of collision between electric cars and vehicles induced the defendant company to place a "Go slow" sign in the street to warn their motormen. On the evening in question, some of the carriages referred to had crossed Baronne street, and the carriage in which the plaintiff was riding was approaching the crossing, when an electric car was seen coming up Baronne street. The driver of the carriage saw the car in time to stop, but took the chances of crossing before the car reached the intersection of the streets. He miscalculated, and the car struck the rear portion of the carriage, which was tilted over against a post in the street. The plaintiff was shaken up by the jar, and was injured in one of her shoulders.

It is admitted that the car was coming up Baronne street at full speed, but there is no evidence to show that the speed exceeded the limit prescribed by city ordinance. No more ordinary care was required of the motorman than the sounding of the gong and the slackening of the speed as the car approached the crossing. Brown v. Railroad, 42 La.Ann. 354, 7 So. 682, 21 Am. St. Rep. 374. The conductor and the motorman testified that the gong was sounded, and that the speed was slowed down at a point 80 or 100 feet from Third street. A passenger on the car, who was at the time reading a newspaper, heard the collision, and on looking up observed that the car was moving slowly, and saw the driver of the carriage on the ground, picking himself up, and the horses trotting or running away. A more observant passenger testified that the car was going at the usual rate of speed, and as it reached Third street he noticed the car slack up in speed and heard the gong sounded by the motorman. A lady living on Third street next to the corner of Baronne testified that she heard the motorman sound his gong at Second street. The witness was expecting her daughter, who was employed at one of the Canal street stores.

The plaintiff testified that she saw the car half a block away that it was running very fast; that no gong was sounded; and that no attempt was made to check the speed. Another lady testified to the same effect; but, as she did not see the car until just about the moment of the collision, she had no opportunity of observing its speed or management. Mrs. Burns, a companion of the plaintiff in the carriage, and who also has a damage suit against the defendant railway for alleged injuries resulting from the same collision, testified that ...