McCarty v. Rood Hotel Co.

• Decision Date: 31 May 1898
• Citation: 144 Mo. 397,46 S.W. 172
• Parties: McCARTY v. ROOD HOTEL CO.
• Court: Missouri Supreme Court

46 S.W. 172

144 Mo. 397

McCARTY v. ROOD HOTEL CO.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

MASTER AND SERVANT — ELEVATORS — FELLOW SERVANTS — PLEADING — NEGLIGENCE.

1. Plaintiff, an engineer and electrician in defendant's hotel, who attended to all the mechanical appliances, including the elevator, was a fellow servant of the elevator boy, who caused his injuries by running the elevator when he was working in the shaft, though the boy was subject partly to his orders, where both were subject to the orders of a manager.

2. Evidence of negligence will be confined to the specific charge set forth in the complaint.

3. Where a servant is injured, while working in the elevator shaft, by the counterweight descending and catching his hand, the facts that he knew the elevator was being run up and down, and the danger from such weight, and that he would not have been injured if he had paid attention to his surroundings, which he knew to be dangerous, preclude his recovery.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by David C. McCarty against the Rood Hotel Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

John R. Christian, for appellant. A. & J. F. Lee, for respondent.

SHERWOOD, J.

Action for personal injuries received in the shaft of an elevator while in the employ of defendant hotel company. At the close of plaintiff's case the trial court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit, and, failing to have it set aside, appealed to this court.

The sole act of negligence charged in the petition is that Thompson, the elevator boy "(acting under the order of E. E. Sumner, the manager of said West End Hotel, who had general supervision and control over all the employés and appointments of the hotel), in answer to a bell call from an upper floor, proceeded to ascend with said elevator, thereby causing said elevator weights to descend; and, before plaintiff was aware of the movement of said elevator, the balance weights struck his right arm. * * * Plaintiff states that the movement of said elevator while plaintiff was known to be in said shaft was gross negligence, carelessness, and recklessness, * * * wherefore plaintiff says that, by reason of the negligence, carelessness, and recklessness of defendant's agents and employés, he has been damaged." The answer denied negligence of defendant, and alleged contributory negligence of plaintiff.

For three years prior to, and at the time of, the accident, plaintiff had been employed as engineer of the West End Hotel, which belonged to defendant, and had charge, as electrician and engineer, of all the machinery and electrical appliances about the hotel, including the elevator. He was 36 years of age at the time of the accident. When he first went to work at the hotel, the elevator was in bad condition; and Mr. Sumner told him it could not be shut down in the daytime for repairs, and consequently plaintiff worked all night in repairing it; and this was the first work he did there. After that, acting under the orders of Sumner, and being told the elevator could not be shut down in the daytime, he used to work repairing the elevator in the daytime; that is to say, he would go on and work in different portions of the elevator shaft until it became necessary to run the elevator either up or down, when he would cease working for awhile, and then resume his work after the elevator stopped running. Thompson, who operated the elevator, was an intelligent boy, some 17 or 18 years of age. Plaintiff directed the elevator boy in his work, and both were subject to the orders of Rood, president of the company, Sumner, its general manager, and Hilliard, its chief clerk. On the day of the accident the machinery connected with the...