Stagg v. Edward Western Tea & Spice Co.

• Decision Date: 30 June 1902
• Citation: 169 Mo. 489,69 S.W. 391
• Court: Missouri Supreme Court
• Parties: STAGG v. EDWARD WESTERN TEA & SPICE CO.

69 S.W. 391

169 Mo. 489

STAGG v. EDWARD WESTERN TEA & SPICE CO.

Supreme Court of Missouri, Division No. 2.

June 30, 1902.

SERVANT — INJURIES — NEGLIGENCE — SCOPE OF EMPLOYMENT — ASSUMED RISK — PLEADING.

1. A city ordinance providing that users of all power elevators should employ competent persons to operate the same, and that whenever it should become evident to the inspectors that any elevator operators were incompetent, the users, on notification thereof, should replace such operators with qualified ones, did not apply to a case where one using an elevator in his place of business employed no particular person to operate it, and a servant, while attempting to raise the elevator from one floor to another, was killed, by being caught between the ascending automatic safety gate and the ceiling.

2. In an action for death the petition alleged that deceased was manager of all defendant's business save that conducted directly from the office; that the elevator in defendant's establishment was not provided with an operator; that deceased attempted to raise the elevator from one floor to another by pulling on the cable rope, as was the custom, when the elevator suddenly shot upward, and, the automatic safety gate, beside which deceased was standing, also ascending, he was caught by the gate under the arm, sustaining injuries from which he died. There was no allegation that deceased was engaged in the master's business. Held bad on demurrer for not showing that deceased was acting within the scope of his employment.

3. An allegation in the petition that deceased was not cognizant of all the dangers of the elevator did not negative a knowledge of the working of the automatic gate.

4. Deceased assumed the risk of injury from the gate.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action for wrongful death by Zenia Stagg against the Edward Western Tea & Spice Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to plaintiff's amended petition. Plaintiff declined to amend, and final judgment was rendered for defendant, and plaintiff appeals.

The amended petition, omitting caption, is in these words: "Plaintiff, for cause of action, states that she is a citizen and resident of the city of St. Louis and State of Missouri, and is the widow of Warren L. Stagg, who departed this life in said city on the 13th day of July, 1898; that defendant is a business corporation organized and existing under the laws of the state of Missouri, and engaged in manufacturing and handling flavoring extracts, spices, etc.; that at the time hereinafter mentioned defendant was the occupant of a certain six-story building and premises, with the appurtenances thereto belonging, known as No. 10 Cupples Block, and situated at the southwest corner of Tenth street and Clark avenue, in the city of St. Louis, which building was at said time occupied by defendant as its principal place of business in the said city of St. Louis. Plaintiff states that in said building there was on the 13th day of July, 1898, a certain power elevator from the cellar to the top floor thereof, and used by defendant in the conduct of its said business. Plaintiff further states that at the said time there was in force in the said city of St. Louis an ordinance, known as `Section 1669 of the Revised Ordinances of the City of St. Louis, 1892,' which provided as follows: `The users of all power elevators shall employ a competent person to operate and run the same, who shall have a proper knowledge of all the parts of the machinery for the working of the elevator of which he may have charge, and who shall not be less than sixteen years of age, and of industrious and sober habits. Whenever it shall become evident to the inspector of boilers and elevators that any person employed in the above capacity is incompetent or untrustworthy, he shall notify the users of said elevator, who shall at once replace the incompetent employé with a qualified operator.' Plaintiff further states that under said ordinance it became and was the duty of the said defendant to employ a competent person to operate and run said elevator, who had a proper knowledge of all the parts of the machinery for the working of the said elevator, and who was not less than sixteen years of age, and of industrious and sober habits; yet that defendant, not regarding its said duty, and while it was so using said elevator, to wit, on the 9th day of July, 1898, wrongfully and negligently suffered said elevator to be run and operated without the employment of a competent person to operate and run same, who had a proper knowledge of all the parts of the machinery for the working of said elevator, and who was not less than sixteen years of age, and of industrious and sober habits, as required by said ordinance. Plaintiff further states that the shaft or well hole in which said elevator was run was partitioned from each of the various floors of the said building by means of a so-called `safety elevator gate,' which consisted of an automatic sliding gate, about three feet in height and five feet in length, which moved in grooves fitted to receive it on either side of the entrance to said shaft, and which gates were raised from the floor to the ceiling of each story automatically whenever the elevator passed one floor to the next, dropping again into position as the elevator continued its ascent, and such gate was so raised with the same velocity and force as the...