which was, so far as appears, entirely in the control of the defendants, could not, the court say, have been without their knowledge and, whatever the rights of the tenants or their servants may have been in the entry, afforded some evidence that the boxes were there by their authority and permission, and that the letter carrier in visiting them in the performance of his duty came there by the implied invitation of the defendants for the convenience of their tenants, or at least that he was authorized to believe that he came there by such an invitation. While the building was intended for workshops and while there were no offices in it, it was still one where, to some extent, at least, the tenants received letters, and there was a preparation and adaptation of the entry or hallway for the plaintiff's use which might well lead him to believe that he might safely enter in the performance of his duty.'

If the plaintiff was authorized and induced to enter this hallway there was also evidence of a want of due care in the management of the elevator well down which the plaintiff fell. It opened directly upon the street about twenty inches back from the line of the street by a doorway framed in granite, its threshold being some eight inches high from the flagging of the street. Separated from this elevator doorway by a stone post one foot wide was the entrance of about the same dimensions and construction which led up to the hallway of which we have already spoken. Its threshold was at the same height as that of the elevator entrance, and was a continuation of it, but was not quite so wide. The elevator entrance was provided with an up-and-down sliding door which, when down, closed the entrance, and with a chain, which, when hooked, hung loosely across it. The evening when the accident occurred the elevator door was opened and the chain unhooked. It was quite dark, there was no light on the outside of the building, although there was a gas light at about a distance of sixty feet and an electric light at a distance a hundred and twenty feet. The sidewalk in front of the building did not extend in front of either the elevator entrance or that of number 619, the intervening space being the flagging of the street

'Parker v. Barnard, 135 Mass. 116; Sweeny v. Old Colony & N. R. Co. 10 Allen, 368; Learoyd v. Godfrey, 138 Mass. 315; Larue v. Farren Hotel Co. 116 Mass. 67.

so that teams could back up to both of these entrances. Upon this state of facts the conclusions are reached that there was evidence of a want of due care in leaving the elevator entrance thus exposed, and the plaintiff's testimony tended to show that while seeking to enter at number 619 he stepped into the elevator entrance and was precipitated down the well. That he had a right to suppose that when seeking to enter when he had a right, he would not be exposed to this danger, and that an entrance by its side, easily to be mistaken for it, would not be left open and uninclosed by any barrier at a time when it was not in use. Without any light directly upon it, with the door open directly upon the elevator well with the chain unhooked, it might certainly be held by a jury that there was a carelessness in its management which would expose anyone to serious danger who was lawfully approaching the entrance to the hallway. There was also evidence that for this condition of things the defendants were responsible. While their tenants had the authority to use this elevator it was their duty, the court says, to see that while not in use by them it was in a safe condition for those who were passing in the street or lawfully seeking access to their building. They furnished the power by which the elevator was run, although the tenants used it for freight purposes during the day. But the defendants' servant, the watchman, was, in the language of the report, "supposed to shut the elevator at six o'clock at night." From this the court assumes that it was his duty so to do, and on the night of the accident he was at the building before the accident happened. It was thus apparently by the neglect of their own servant that the elevator entrance was in the exposed condition in which it was found. While the defendants permitted their tenants to use the elevator during the day, they had not let to them or relinquished to them the control of it. They had not let the whole of their building, but were themselves in occupation of the part that was not let, and, so far as appears had full authority to make the well safe. It is said by defendants that the hole into which plaintiff fell was not on the premises let to Byfield & Co., and that there can be no liability on their part for an injury which did not arise from any defect either of the leased premises or premises over which the tenants had the right of in

viting customers, so that even if they would be liable to plaintiff for an injury if he had received it in the hallway by a defect existing there, they are not liable for an injury incurred by reason of any negligence in the management of an excavation not on the leased premises. This is, in the opinion of the court, to limit the liability of defendants quite too narrowly. If the defendants had induced or invited, through their tenants, the plaintiff to enter No. 619 Albany street, so far as the access thereto was under their own control, it was their duty to see that this access was not endangered by their negligence in the management of the other parts of their building, in order that a person rightfully seeking to enter should not be exposed to the liability of a fall into an opening so constructed that it might well be mistaken for the proper entrance.'

There remains only the question whether the plaintiff offered any sufficient evidence of due care. In disposing of this it is said that he knew the character and description of the premises; he had passed them many times and was aware that the two entrances were close to each other; but his previous knowledge of their dangerous proximity is not conclusive that he was not exercising due care in attempting to enter." He describes the care with which he moved, his feeling his way, his effort to ascertain when he stepped upon the threshold that he was in the right entrance. To some extent he might calculate that at that hour either the chain would be across or the door closed at the elevator entrance, and putting his knee and hand forward discovered neither. The character of his conduct depending upon this and other circumstances is such that it is not possible to say, as a matter of law, viewed in the light of common knowledge or experience, he was lacking in due care. The conclusion is that the judge who presided was in error in withdrawing the case from the jury, and that the question of fact involved should have been submitted to their experience and judgment.'

1Elliott v. Pray, 10 Allen, 385; Readman v. Conway, 126 Mass. 374; Larue v. Farren Hotel Co. 116 Mass. 67.

& Wheelock v. Boston & A. R. Co. 105 Mass. 203.

*Gordon v. Cummings, 9 L. R. A. 640, 152 Mass. 513.

§ 101. Presumption of Negligence in Case of Injury from Elevator.

The falling of an elevator affords prima facie evidence of negligence.' Such was the rule stated in the case of a temporary elevator used in the construction of a building, which fell upon a workman directed to pass beneath it. Res ipsa loquitur is inapplicable to the fall of an elevator the cause of which is apparent.* But in an action by a passenger against a hotel proprietor for injury caused by the fall of a hydraulic elevator, where it is shown that the elevator had all known safety appliances, and defendant had no knowledge or reasonable cause to believe there was any danger from air coming from the street pipe, he would not be liable even if he knew that the water was being shut off from the street main."

Although one is authorized for the purpose of delivering ice, to enter an apartment house, and use its elevator, he will not make out a prima facie case of negligence against the owner of the building by mere proof that, while he was hoisting ice to at tenant, upon an elevator or dumb-waiter, the rope broke and the elevator machinery fell upon and injured him, without any evidence as to the condition of the elevator or rope. One injured. while operating an elevator, by the fall of the iron weights by which it was operated, through the top of the elevator car upon. him, can not recover in the absence of any evidence as to how they became displaced, or that it was through any defect in the construction of the elevator, or that in the manner of keeping the weights in place the elevator differed from others, or that it was in improper condition prior to the injury.*

But where the fall of an elevator is caused by the breaking of the cable and no other reason for this break appears, it will be assumed to have resulted from original insufficiency of the cable, or from wear, and where there is evidence of its proper construc

'Gerlach v. Edelmeyer, 15 Jones & S. 292.

'Brennan v. Gordon, 3 N. Y. S. R. 604.

Shattuck v. Rand, 2 New Eng. Rep. 378, 142 Mass. 83.

Turnier v. Lathers, 36 N. Y. S. R. 821.

'Davidson v. Davidson, 46 Minn. 117.

tion and of its use for three or four years, the jury may infer that the defect was the result of wear.'

§ 102. Contributory Negligence

Negligence.

Comparative

Usually the question of contributory negligence is one for the determination of the jury. One about to exercise a right, is not guilty of negligence contributing to an injury he may receive from another's negligence, because he did not anticipate such negligence. A tenant approaching an elevator shaft kept in the building for the use of tenants, and operated by the landlord or his servants, is not, as matter of law, guilty of contributory negligence in stepping through the door of the shaft without looking or listening for the elevator, where it is opened on the outside by a boy who has often had charge of the elevator, and whom the defendant supposed to be on the elevator, the elevator shaft not being lighted.'

Where from the outer edge from the first step in front of the door of an elevator well, to the shaft, was less than three feet, and the door, which was of solid wood, was partially open as one approached it, disclosing sufficient flooring to create the impression that it was continuous, the question whether a person entering the well in the daytime is guilty of contributory negligence causing his fall is properly left to the jury. But if he knows there has been negligence, he must use due care to avoid the consequences. Where plaintiff, while lawfully in defendant's warehouse, fell into an elevator well which he knew of and could have avoided. his testimony that, when near the elevator, something struck him and he fell upon his back, without proof that anything was out of place, or other evidence of negligence, will not make defendant liable."

The test of contributory negligence, or want of due care, is not

1Goodsell v. Taylor, 4 L. R. A. 673, 41 Minn. 207.

Ray, Imposed Duties, Personal, 665.