Cicardi v. St. Louis Transit Co.

• Decision Date: 29 November 1904
• Citation: 83 S.W. 980,108 Mo. App. 462
• Court: Missouri Court of Appeals
• Parties: CICARDI et al. v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 980

108 Mo. App. 462

CICARDI et al. v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

STREET RAILROADS — VEHICLES — COLLISIONS—NEGLIGENCE OF DRIVER—PROXIMATE CAUSE.

1. Plaintiff was driving a three-horse team by the side of a street car track, and in attempting to pass a vehicle in front of him drew nearer to the track without looking to the rear for a street car, when one rapidly approached from the rear, passed the rear hub of the wagon, then three feet away, struck the front hub, and killed the near horse, when it passed on, running a considerable distance before it was checked. Held, that the driver's negligence in so turning toward the track, without looking to the rear, was the proximate cause of the disaster, for which defendant was not liable.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Louis Cicardi and others against the St. Louis Transit Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. John A. Gernez, for respondents.

REYBURN, J.

Plaintiffs brought this action before a justice of the peace for recovery of damages consequent upon a team and wagon owned by them being struck from the rear by a car of defendant. The plaintiffs appealed to the circuit court from a judgment in favor of defendant, filing in the latter court an amended complaint which assigns as specification of negligence imputed to defendant the failure of its servants and agents to comply with that ordinance of the city of St. Louis familiarly known as the "vigilant watch ordinance." A trial before a jury in the circuit court terminated in a verdict for plaintiffs, and defendant has perfected its appeal hereto.

The facts exhibited by the testimony were that at about 3 o'clock in the afternoon of April 9, 1903, plaintiffs' wagon, drawn by three horses, and loaded with potatoes, to be delivered to the city poorhouse, was proceeding southwestwardly on the Old Manchester Road, a public highway. The wagon had been moving in the middle of the roadway till obstructed by another wagon, in endeavoring to pass which vehicle plaintiffs' driver drove his wagon within eight inches of the street railway track upon which a car of defendant, moving rapidly in the same direction, drew up alongside with rapid speed without touching the rear end or hub of the wagon, then three feet away, but struck the front hub, throwing the wagon around, and striking...