Troth v. Narcross

• Decision Date: 20 September 1892
• Parties: TROTH v. NARCROSS et al.
• Court: Missouri Supreme Court

20 S.W. 297

111 Mo. 630

TROTH v. NARCROSS et al.

Supreme Court of Missouri, Division No. 2.

September 20, 1892.

NEGLIGENCE — PETITION — SUFFICIENCY.

In an action for personal injuries, caused by an elevator, while in defendant's employ, the only negligence alleged was that defendant failed "to provide suitable and proper rules for the running and management of said elevator, whereby plaintiff could have been warned of its descent, and in permitting it to descend on plaintiff without notice or warning." It was not alleged that defendants had any authority or control over the elevator. Held, that plaintiff was not entitled to recover.

Appeal from circuit court, Jackson county; JAMES GIBSON, Judge.

Action by Lorado Troth against Narcross Bros. for personal injuries caused by defendants' negligence. From a judgment for defendants, plaintiff appeals. Affirmed.

Sherry & Hughes, for appellant. Warner, Dean & Hagerman, for respondents.

GANTT, P. J.

This is an action for personal injuries. Plaintiff was in the employment of defendants, who were partners and contractors for some of the work in the erection of the New York Life Insurance Company's building, Ninth and Wall streets, Kansas City, Mo. The petition alleges that plaintiff was in the employ of defendants as a laborer on this building; "that while so engaged, on 14th of May, 1888, he was ordered by the foreman of defendants, whose orders he was bound to obey, to place a chain around an iron beam reaching across the elevator way in the fifth story of said building; that while attempting to place said chain around said iron beam the elevator was negligently, carelessly, and without notice or warning to plaintiff, caused and permitted to descend from the sixth story of said building upon the head and shoulders of plaintiff, whereby he was permanently injured; that he was greatly bruised and mangled, solely on account of the negligence of defendants in failing and omitting to provide suitable and proper rules for the running and management of said elevator, whereby plaintiff could have been warned of its descent, and in permitting it to descend on plaintiff without notice or warning." The damages were laid at $20,000. The answer was: "(1) General denial, except the partnership. (2) Contributory negligence." Then as follows: "(3) The defendants further state that at the time of the alleged injuries to the plaintiff, and for a long time prior thereto, he knew that the elevator was constantly ascending and descending the building referred to, and that he entered and continued in the service of the defendants with full knowledge thereof, and assumed all risks incident to the moving of said elevator, thereby waiving any claim for any damage which might result to him from the said elevator while he was in the employ of the defendants; and therefore he cannot maintain the action. (4) Defendants further state that the plaintiff, while in the service of the defendants, at the time complained of, knew that the said elevator was running, and by the exercise of ordinary care on his part could have avoided being struck by the same." The reply was denial of contributory negligence and general denial of all matter pleaded in third and fourth counts of defendants' answer.

The plaintiff, to sustain the issues on his part, testified in his own behalf to the effect that he was a man 24 years of age. He was a stationary engineer by occupation. He was employed April 3, 1888, to work in the building, by the assistant superintendent. Had been at work in the building about six weeks when hurt. He was taken to one Mallon as his boss, and told to obey him. On the morning he was hurt, Mallon sent him to the basement for a chain. When he returned he found Mr. Mallon trying to fasten a guy rod to the iron beam in the elevator way. Mallon said to him: "I can't reach it. Come over and help me put it on." Mallon was sitting on the back end of the beam that ran up the side of the elevator shaft, trying to put the chain on. When Mallon called him, plaintiff (to use his own language) "walked over to where Mallon was working, and got down, and set straddle of the beam. And about the time I got down they let the elevator down, and hit my head and shoulders, and mashed me down, and bruised my head and shoulders. There was no rule or regulation that I know of about running the elevator, `except there was a man at the top and one at the bottom, ringing an electric bell, before they started down.' The elevator weighed 500 to 700 pounds. It passed from top to bottom in a few seconds. It was run by an engine in the basement." When it was at the top, and they wanted to go down, they would ring a little bell, and the engineer would draw that out, and...