Maritzky v. Shreveport Rys. Co

• Decision Date: 06 January 1919
• Docket Number: 22905
• Citation: 144 La. 692,81 So. 253
• Court: Louisiana Supreme Court
• Parties: MARITZKY v. SHREVEPORT RYS. CO

81 So. 253

144 La. 692

MARITZKY v. SHREVEPORT RYS. CO

No. 22905

Supreme Court of Louisiana

January 6, 1919

Rehearing Denied March 12, 1919

Wise Randolph, Rendall & Freyer, of Shreveport, for appellant.

Thigpen & Herold and Goldstein & Walker, all of Shreveport, for appellee.

DAWKINS J., takes no part.

OPINION

O'NIELL, J.

Plaintiff's daughter, Miss Dewhana Maritzky, was killed by a street car colliding with an automobile in which she was riding. He obtained judgment against the railway company for $ 5,000 damages. The defendant appeals; and plaintiff, answering the appeal, prays that the amount of the judgment be increased to $ 10,000.

The allegations charging negligence are: (1) That the street car was going at a very dangerous speed, exceeding the limit of ten miles an hour, fixed by municipal ordinance; (2) that defendant's employes operating the car violated another municipal ordinance by failing to stop before crossing an intersecting car line, one block away, on the last street that the car crossed before the collision occurred; (3) that the employes in charge of the car failed to sound an alarm or give warning of danger, failed to keep a lookout for danger, or to have the car under control, or make an effort to stop, until it was too late to avoid the collision; and (4) that the railway company was negligent in failing to have the car equipped with air brakes, instead of the antiquated, slow and ineffective brake with which the car was provided.

Defendant denied that the fatal accident was caused by any fault or negligence on defendant's part; denied that the speed of the car was dangerous or excessive, or unlawful; denied that the men operating the car failed in any duty, or were negligent in any way, or could have avoided the accident. Defendant admitted that the car was not equipped with an air brake, but averred that the brake with which it was equipped was a proper, efficient and usual equipment, not antiquated. Defendant averred that the accident was caused by the recklessness of the driver of the automobile and of those within the vehicle, including plaintiff's daughter, Dewhana Maritzky. Defendant alleged that, while the trolley car was proceeding at a moderate and lawful speed along Crockett street the automobile came suddenly out of Edward street (intersecting Crockett street), at a rapid and unlawful speed, and, turning into Crockett street, rushed upon the railway track toward the approaching street car; that the sudden appearance and swift movement of the automobile made it impossible for those operating the street car to avoid a collision, though in fact they did all that was possible to avoid it; that the driver of the automobile failed and neglected to stop, look or listen for an approaching street car, before he turned into Crockett street, notwithstanding he and all other occupants of the automobile were familiar with the situation and knew there was a car line on Crockett street; that there was no necessity for going upon the car track to make the turn into Crockett street, or there would have been no necessity for going upon the track in making the turn if the automobile had been going at lawful speed; and that every occupant of the automobile, including plaintiff's daughter, Dewhana Maritzky, participated in the negligence and recklessness of the driver. Defendant, averred in the alternative, and protesting innocence of negligence, that, if the court should find that there was negligence on defendant's part, the negligence of the driver of the automobile, and of plaintiff's daughter and of the other occupants of the vehicle, contributed to and caused the accident, and that therefore plaintiff could not recover damages, even if defendant had been guilty of negligence.

The collision occurred near -- 40 or 50 feet below or south from -- the intersection of Crockett street and Edward street, in Shreveport, at a late hour at night, near midnight. The automobile was being driven by its owner, H. B. Hirsh, 20 years of age. Miss Maritzky was his guest in the car and sat beside him. Three other guests of Mr. Hirsh occupied the rear seat. They were Miss Maritzky's sister and Miss Florence Groner and a brother of Mr. Hirsh. The party was returning home from a dance given at the Elks' Lodge, which is located on Edward street, in the first block west from Crockett street. The car line is on Crockett street, running north and south, or nearly so, and crossing Edward street at right angles. There is a driveway along either side of the railway track. Hirsh had parked his automobile on the south side of Edward street, about 60 feet -- possibly 100 feet -- west from Crockett street. His way home -- or the route he intended to take -- was via Crockett street, south. When he started his automobile toward Crockett street, headed east, he was not aware that the offending trolley car was coming north toward Edward street. His intention was to turn to the right or south into Crockett street and proceed along the driveway on the right or west side of the car track. He did not see or...