Von Scoter v. Megginson , 144 Miss. 510 ( 1926 )

^* Corpus Juris-Cyc. References: Master and Servant, 39 C.J., p. 277, n. 49; p. 972, n. 88. The appellee was plaintiff in the court below and sued for a personal injury resulting from a break of a cable used in carrying brick and other material up on a building being constructed, upon which building Megginson was working as a brick mason. Megginson, at the time of his injury, was riding on this material elevator. The elevator was not intended to be used as a carrier of men, and the contractor, Von Scoter, had given orders for the men not to ride on this elevator. There were ladders for the men to use in going to work on the building and in coming off the building for any purpose. The man who operated the material elevator, in violation of his order not to let the men ride the elevator, did let some of them ride. The break in the wire cable which moved the elevator was about six feet from the elevator and a clear break. The cable was a five-eight strand wire.

The proof shows that it was inspected the day before the injury occurred, and was in good condition, with nothing to indicate that it was defective. This cable was supposed to have a break weight of eighteen thousand pounds; that is, it was represented that it would carry any weight under that number of pounds. The cable and motor by which the elevator was operated had been in use for about six months and used irregularly. There was nothing to show that there was any reason to believe that it was defective in any respect as to the manner of its breaking. At the time of the breaking, it was carrying a wheel barrow of brick weighing about six hundred pounds and the weight of the plaintiff.

We think the doctrine res ipsa loquitur was not applicable to the facts here, and that, consequently, the court was in error in submitting this to the jury by instruction.

We are also of the opinion that the appellant, Von Scoter, was under no duty to the plaintiff at the time the injury occurred, and that the plaintiff was riding the elevator without authority and without the knowledge of Von Scoter. It is clear that the operator of the elevator had no authority to permit plaintiff to ride this elevator, and his act in so doing was not the act of a master. Consequently, we think the plaintiff had no cause of action, and that the judgment of the court below should be reversed and judgment rendered here for appellant.

Judgment reversed, and rendered here for appellant.

Reversed.