47 Mo. App. 8 | Mo. Ct. App. | 1891
The plaintiff brought this action to recover damages for injuries sustained by him through the negligence of an elevator boy in the defendant’s employ. The petition states, in substance, that the plaintiff was at the time of the accident engaged in erecting wire guards in the outlets from the elevator shaft, and was standing on a joist in the shaft opposite the third floor for the purpose of making a measurement for a brace which was to fasten the wire guard to a post inside the elevator shaft; that he had notified the defendant to stop the running of the elevators while he was doing this work, which the defendant promised to do; that, immediately before the plaintiff stepped out on the joist, he directed the elevator boy not to start
On the triál of the cause the plaintiff gave evidence of facts tending to substantiate the allegations of his petition. The defendant adduced evidence tending to show that he made no promise of any kind to the plaintiff ; that the only agreement made in regard to the running of the elevator was made between the plaintiff and the defendant’s engineer, whereby it was agreed that the cage of the elevator in question should be kept running between the first and second floor as usual, but no higher than the second floor ; that in consequence of such arrangement the engineer put an automatic stop on the engine, which prevented the elevator cage in question from ascending higher than the second floor ; that the engineer was in exclusive charge of the elevators, and the only person who had any authority to make arrangements touching their running. The cause was tried before a jury, who found a verdict for the defendant; and the only error complained of on this appeal is that the instructions given by the court were erroneous and misleading.
The plaintiff asked two instructions, both of which were given by the court. One was on the measure of damages, and has no bearing on the present inquiry. The other, which states the conditions of plaintiff’s right of recovery, is as follows: “If the jury believe from the evidence in this case that Field-Lange Wire & Metal Company had a contract with defendant to put up wire guards about the shafts of the elevators described in plaintiff’s petition herein; that plaintiff
The defendant asked the following instructions, which the court gave: “The court instructs the jury that, if you find from the evidence that plaintiff, in going to work on the elevator on defendant’s premises, made, with the consent of the defendant, pertain arrangements with defendant’s engineer for the running of the elevator whilst he was working about it, which said arrangements were complied with by the defendant’s engineer; and if plaintiff governed himself by them he would not have been injured : and, subsequently, and without knowledge or consent of the defendant, or the engineer, he attempted to vary such arrangements by directions to defendant’s elevator boy, in conflict with the scope of the boy’s duties to his master, and, through his failure to follow which by the boy, plaintiff was injured, then plaintiff cannot recover herein.”
“The court instructs the jury that, in order to render a master liable for the negligence of a servant, the servant must have been acting within the scope of his employment, and must have been subject to his master’ s order and control at the time of the commission of the negligent act complained of; and, if you find from the evidence that Huber, defendant’s elevator boy, at the time of the accident in question, was not, in fact, acting under the directions of the defendant, but had, without direction from defendant so to do, placed himself under plaintiff ’ s control, and that plaintiff assumed to direct, and did direct, him, then for said Huber’s negligence in failing properly to follow the directions given him- by plaintiff, whereby plaintiff was injured, defendant would not be liable.”
It will be seen by the statement of the evidence hereinabove set put, that the plaintiff’s instruction,
The master is answerable to third persons for injuries which they receive by the servant’s wrong or negligence while acting within the scope of his employment. The proper limitation recognized in all cases is, that the wrong done must be within the scope of the servant's employment. Jones v. Packet Co., 43 Mo. App. 398; Farber v. Railroad, 32 Mo. App. 378, and cases cited. It was unquestionably the duty of the defendant and his servants in the operation of the elevator to use it in such manner as not to injure the plaintiff, while engaged in working upon the elevator, and, if the case would simply rest on that proposition, the plaintiff’s right of recovery would be warranted by Donovan v. Gay, 97 Mo. 440. But this case presents a different proposition. The defendant asserts, and the jury find, that the plaintiff and defendant entered into
It is said by Alvey, C. J., in Adams v. Cost, 62 Md. 264, that, if the servant does an act by the request of the person injured, which he would not have done if not thus requested, he becomes pro hao vice the servant of the party making the request, and such person cannot recover for injuries caused to him by the negligent performance of that act; but it is not necessary to go to that extent in this case to justify defendant’s instructions.
The court gave a further instruction to the jury for the defendant on the ground of contributory negligence. As that instruction was not excepted to, there is nothing before us for review on that subject.
the judgment is affirmed.