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found in the failure to exercise the best judgment or to use the wisest precaution, but allowance may be made for the influences ordinarily governing human action, as what would under some circumstances be want of reasonable care, may not be such under others. The contributory negligence which prevents recovery for an injury must be such as co-operates in causing the injury, and without which the injury could not have happened.' But it need not be the sole cause of the injury; it is sufficient if it be one of two or more concurring efficient causes, to bar recovery. But any negligence of the plaintiff, however slight, that contributes to the injury, precludes, at common law, his recovery." Where the rule of comparative negligence is recognized, as in Illinois and in Georgia, this rigid rule is not enforced.'

§ 103. Statutes Regulating the Use of Elevators.

In many of the states the protection of elevator openings and the operation of elevators is regulated by statute. These statutes are salutary in their purpose, requiring the owners or occupants of business places to protect, in the manner prescribed by them, against danger of personal injury those lawfully there, and to which they otherwise might be exposed. Their intent is to provide against personal peril, and it may be assumed that the state legislatures were advised that such provision was essential to such protection. A statute making it the duty of the owner of a building to provide trap or automatic doors in elevator ways, and making a neglect to do so a misdemeanor, imputes legal negligence for such neglect, giving a party injured in consequence, a prima facie right of recovery.'

The New York statute was recently applied and enforced under the following circumstances: The plaintiff entered the defendant's building and place of business on West Fourteenth street, in the city of New York, and fell into an uncovered elevator hatchway, and was injured. He claims that such injury was occasioned wholly by the negligence of the defendants. This building was 1 Ray, Imposed Duties, Personal, 364.

2 Lery v. Campbell (Tex.), April 19, 1892.

Ray, Imposed Duties, Personal, 631.

*Freeman v. Glens Falls Paper Mill Co. 39 N. Y. S. R. 621.

a manufactory of the defendants, and the elevator was there for for the purpose of their business. The principal ground of the alleged negligence of the defendants is that they had failed to comply with the statute, which provided that "in any store or building in the city of New York in which there shall exist or be placed any hoistway, elevator or well hole, the openings thereof, through and upon each floor of said building, shall be provided with and protected by a substantial railing, and such good and sufficient trap doors with which to close the same as may be directed and approved by the superintendent of buildings; and such trap door shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same." There was no railing or any obstruction in the way of approach to this elevator shaft from the front door opposite to it, and, although the evidence tends to prove that the elevator was not in actual use at the time the plaintiff so entered and fell, there was no trap door over the hole. The exercise of the duty imposed upon the defendants by this statute was not dependent upon any action of the superintendent of buildings. They could not properly delay for him to direct, but it was for them to call on him for direction and approval in that respect. The situation had been the same for several years, and it does not appear that any direction or approval of that offcial had been obtained from or given by him.

The failure to perform a duty imposed by statute, where, as the consequence, an injury results to another, is evidence upon the question of negligence of the party chargeable with such failure." It is not conclusive evidence of negligence, and the question presented is whether there was error in the charge of the court to the effect that any one constructing or using an elevator upon his premises is considered as doing so with knowledge of the law in that respect, and if such person fails to comply with the requirements of the statute he is prima facie guilty of negligence. The

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Jetter v. New York & H. R. Co. 2 Abb. App. Dec. 458; McGrath v. New York Cent. & H. R. R Co. 63 N. Y. 523: Massoth v. Delaware & H. Canal Co. 64 N. Y. 524; Willy v. Muiledy, 78 N. Y. 310; Knuple v. Knickerbocker Ice Co. 84 N. Y. 488.

defendants' counsel excepted to so much of the charge as states that "a failure to comply with the provisions of the law of 1874 is prima facie evidence of negligence." As an abstract proposition there was no error in the charge. It had reference to the failure to perform the statutory duty unqualified by any circumstances bearing upon the question, and was not necessarily applied to the present case so as to treat the question of negligence of the defendant as one of law. It was a question for the jury, and upon the request of the defendants' counsel they were instructed that the plaintiff could not recover unless the jury found that the defendants were negligent in the use of their premises; and that if the condition of the doors and the elevator, and its use by the defendants, were reasonable, the plaintiff could not recover. The evidence was such as to justify the conclusion that the defendants were chargeable with negligence, and they owed to any person who should lawfully go into the building the duty which the statute imposed upon them to do him no injury by their negligence in that respect. That duty they owed to the plaintiff who went to the premises for a legitimate business purpose.'

'McRickard v. Flint, 114 N. Y. 222.



$104. Liability for Conductor, Engineer, Brakeman, etc.

§ 105. When Liable for Acts of Violence of Employé; Former Rule. § 106. Modern Rule of Liability for Wanton Violence of Employés. § 107. Passengers Entitled to Protection against Rudeness. § 108. Liability of Carrier as Master, what must Appear.

§ 104. Liability for Conductor, Engineer, Brakeman, etc.

A carrier of passengers by steam is bound for a due application on the part of its employés, of the necessary attention, art and skill; and if any injury occurs to passengers which might have been avoided by the utmost degree of care and skill exercised by the employés, the carrier is liable.' It undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract. Railroad companies are responsible for any conduct of their agents and officials in the natural and necessary discharge of duties incident to the service in which they are employed,' and are liable for all injuries resulting from the misconduct of the carrier or its employé. Carriers of passengers are said to be responsible for any species of negligence, however slight, of which they or their agents may be guilty. Whether an act constituting negligence was such on common law principles or was made such by statute, the doctrine of agency applies, to wit, that the master is liable for the negligence of his servant committed in the course of his employment and resulting in injury to others."

'Akersloot v. Second Ave. R. Co., 15 L. R. A. 489, 131 N. Y. 599; Nashville & C. R. Co. v. Messino, 1 Sneed, 220; Chicago, B. & Q. R. Co. v. George, 19 Ill. 510, 517.

New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049.

Georgia Pac. R. Co. v. Propst, 83 Ala. 518.

*Springer Transp. Co. v. Smith, 16 Lea, 498.

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Eddy v. Wallace, 49 Fed. Rep. 801; Pennsylvania R. Co. v. Aspell, 23 Pa. 147 *Osborne v. McMasters, 40 Minn. 103.

The drenching of a passenger with water, either negligently or willfully, is a breach of the carrier's duty to carry safely, and it is immaterial, upon the question of the company's liability, whether it resulted from the negligent fault of the brakeman or conductor, or of both of them.' So a passenger injured by the negligence of a guard on an elevated railroad can recover from the company, whether the negligence was direct and willful or was unintentional.* A carrier is liable to a passenger for the negligent throwing of a switch, causing the derailment of a car, by a person who was not employed by the carrier, but did the act in the presence of a brakeman who made no objection. It is the duty of the carrier to employ skillful servants, and it will be liable for any neglect of duty or care or for all acts of wrong done in the scope of the employment, although committed in disobedience of orders.' It is wholly immaterial that the master did not authorize or even know of the servant's act or neglect, or even that he disapproved or forbade it, if the act or neglect be in the course of the servant's employments."

A passenger is not presumed to know the private or secret rules given by a railroad cempany to its conductors, but, in contracting with them, has a right to act upon their statements as to the rules.R Thus a passenger has the right to rely on a statement by a ticket agent who sold him his ticket, that the train for which it is sold is a through train and will take him to his destination, unless a trainman seasonably makes a different announcement in such a manner that the passenger should have heard it; a general announcement to all the passengers not being sufficient unless it was in fact heard by the passenger.' A misdirection as to the proper

train by an agent of a railway company will entitle a passenger to

'Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19.

2 Koetter v. Manhattan Elev, R. Co. 36 N. Y. S. R. 611. Dimmitt v. Hannibal & St. J. R. Co. 40 Mo. App. 654.

McCord v. Western U. Teleg. Co. (Minn.) 1 L. R. A. 144, note; Sleath v. Wilson, 9 Car. & P. 607; Pendleton v. Kingsley, 3 Cliff. 416; Dillingham v. Anthony, 3 L. R. A. 634, 73 Tex. 47.

Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 486, 14 L. ed. 509; Philadelphia & W. B. R. Co. v. Quigley, 62 U. S. 21 How. 210, 16 L. ed. 75; Higgins v. Watervliet Turnp. & R. Co. 46 N. Y. 27; Stewart v. Brooklyn & C. R. Co. 90 N. Y. 591.

Georgia R. & Bkg. Co. v. Murden, 86 Ga. 434. See Highland Ave. & B. R. Co. v. Donovan (Ala.) Nov. 5, 1891.

'Dye v. Virginia M. R. Co. (D. C.) 19 Wash. L. Rep. 369.

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