The action is to recover for a personal injury. The defendants were engaged in business as wholesale dealers in hats, caps, furs, gloves, etc., and manufacturing and repairing furs and fur garments, carrying on the business in a five-story building on Fourth street, St. Paul. In the building was an elevator, running from the lowest to the highest story. The elevator was not inclosed with anything in the nature of wainscoting or boarding, but consisted of a platform or floor, with posts at the corners, and an intermediate post on each side extending up to the framework at the top. About three feet above the floor was a narrow strip of board on the sides, nailed to the posts, and another about three inches high from the edge of the platform. The plaintiff was working for defendants, and was employed with seventy-five or a hundred others in the fur department of the business, the work of which was done in the fifth story. The elevator was used for carrying freight, and the employes were permitted, especially when arriving in the morning and when quitting at night, but were not required, to ride up and down in it, to and from the stories where they worked. There were stairs which they could use if they chose. On arriving at the building one morning, plaintiff took the elevator to ride up to the fifth story, and on entering it she rested her hand on the upper strip and one foot on the lower, and in ascending, the foot, which must have been in part outside the strip, was caught and injured by a joist or timber in one of the floors projecting inside the wall or casing of the elevator well or shaft so as to come very near the edge of the elevator floor.
On the trial plaintiff had a verdict, and the appeal is from an order denying a new trial.
The appellants make several assignments of error, only one of which it is necessary to consider.
The court instructed the jury: “If you find that this elevator described in the testimony was used, with their knowledge and consent, as a passenger elevator, in that case the defendants were bound to the exercise of the highest human skill, foresight, and
That is the degree of care required of a common carrier of passengers towards the passengers he carries. It is a higher degree than is required of a master towards his servant. That degree is stated in Cooley on Torts (page 567) thus: “The law does not require him to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs such reasonable care and prudence in selecting or ordering what he requires in his business as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him. ” See Gates v. Southern Minn. Ry. Co.,
The rules are general, and from considerations of convenience and public policy there are no exceptions. There are sound reasons for requiring a higher degree of care in one case than in the other. An obvious one is, that in the case of the passenger, he neither does know nor can know, nor is he called on to inform himself, whether the carrier employs competent and careful servants and fit and proper machinery and means for performing the service, but he commits himself unreservedly to the care of the carrier; while the servant in most cases may know, and, if the matter is open to ordinary observation, is bound to know, whether the machinery and appliances employed by the master be fit and proper.
As there cannot be two rules as to cases between master and servant, one applying to the use of one kind of machinery and another to another kind, it is evident that if the relation between plaintiff and defendants at the time of the injury was only that of master and servant, the instruction was wrong. We suspect the court below was misled by some indefiniteness in the opinion in Goodsell v. Taylor,
The question comes, then, to this: Was plaintiff, in riding in the elevator from the lower to the fifth story of the building, doing so as the defendants’ servant, or was she riding as a passenger, being carried by them as a common carrier?
We find no case precisely similar in which that question was distinctly passed on. Treadwell v. Whittier, 80 Cal. 574, (
The only cases nearly analogous in which the question whether the person injured was a passenger or employe was passed on were cases where a railroad company was accustomed to carry their employes, without charge, to and fro between the place where they lived or boarded and the place where they worked for the company, and one of them was injured while riding to and from the place of work.
Of these cases Gillenwater v. Madison, &c., R. Co.,
On tbe .other band, bolding that in cases of tbe kind tbe person is carried as an employe, and not as a passenger, are Tunney v. Midland Ry. Co., L. R. 1 C. P. 291; Gillshannon v. Stony Brook R. Co.,
There is, therefore, a considerable weight of authority in support of the proposition that in such cases the person is carried as an employe, and not as a passenger.
And in a case like this reason would seem to point to the same result. State the matter to one not used to making hair-drawn distinctions but to judging by the dictates of business common sense, and we do not think he would hesitate in arriving at that result.
In our opinion, from the time plaintiff entered the building for the purpose of going to work she was there as an employe, whether she walked up the stairs or rode up in the elevator.
Order reversed.