Mr. Justice Eakin
delivered the opinion of the court.
1. The principal contention in this case arises from the fact that by the instructions the court submitted to the jury the question whether or not the action is one under the initiative act adopted by the people in November, 1910, known as the employers’ liability act (Laws 1911, p. 16), or under the common-law liability. The evidence required and admissible under the common-law liability and the application of it is very different from that under the statute. To determine whether the action is to be tried and decided under the one or the other was a law question to be decided by the court, and in leaving that question to the jury the court admitted evidence both as to facts that would create a liability under the statute and also evidence to establish a liability under the common law, and permitted it to determine whe'ther the action was under the statute or under the common-law liability and whether the evidence was applicable under the one or the other, thus allowing it to decide all the legal questions involved, without any indication as to what decision it should make thereon, and leaving no opportunity for either party to have the action of the jury thereon reviewed.
2, 3. This statute does not cover every case of an employer’s liability to his employee, but only the specific cases enumerated in the act. It was intended to supersede the common-law duty of the employer to his employee as to all matters particularly mentioned and changes the character of proof necessary to establish negligence on the part of the employer, and is a general iaw taking the place of the common-law liability in cases coming within it; and no other notice that the action is brought under the statute is required in such an action than to allege the facts *338that bring the case within it: Lore v. American Mfg. Co., 160 Mo. 608 (61 S. W. 678). The effect of the statute is to eliminate the defense of the assumed risk in actions within it: Welsh v. Barber Asphalt Pav. Co., 167 Fed. 465 (93 C. C. A. 101); Caspar v. Lewin, 82 Kan. 604 (109 Pac. 657); Blair v. Heibel, 103 Mo. App. 621 (77 S. W. 1017). By section 6 thereof, the employers’ liability statute expressly eliminates the defense of contributory negligence, except that it may be taken into account by the jury in fixing the amount of damages and for that purpose may be pleaded and proved," not as a defense, but for the consideration of the jury in determining the amount of the recovery. It also eliminates the defense that the injury was the result of the negligence of a fellow-servant in certain cases, and no doubt by section 2 it is intended to change the rule that the character of "the act in the performance of which the injury arises, and not the rank or class of the negligent employee, is the test whether a negligent employee is a vice-principal or a fellow-servant, as announced in Mast v. Kern, 34 Or. 247 (54 Pac. 950, 75 Am. St. Rep. 580). Thus it is seen that the evidence applicable and the matters for consideration by the jury are entirely different in the two cases. "Whether the jury determined these matters correctly cannot bé known, and it was error for the court to submit to it the determination of the law questions involved.
4. Another error complained of is that witnesses were permitted to testify that the height of the railing around the elevator well, especially the sides away from the gate, was only three feet eight inches in height. That was immaterial other than as it was a circumstance connected with the height of the gate, but was not prejudicial. It would have been imma*339terial in the case if there had been no railing on the other two sides, as such fact would not have contributed to the cause of the injury; but defendant’s contention is that the necessary height of the gate is not provided for by the city ordinance relied on. In this defendant is at fault.
5. The ordinance provides that the well shall be protected with a suitable railing not less than five feet high. It would not be protected as contemplated by the ordinance if one side were unguárded, and, as the gate is a part of the protection, it must be the height specified as it constitutes part of the railing. See, to this effect, Dibblee v. Astoria & Columbia River R. R. Co., 57 Or. 428, 430 (11 Pac. 242, 112 Pac. 416), and cases there cited.
Other errors assigned can be determined only with reference to whether the complaint is within the statute or is based on the common-law liability, and the errors complained of, if any, are not likely to occur again.
For the error above mentioned, the judgment is reversed and the cause remanded. Reversed.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.
Denied November 11, 1913.
On Petition for Rehearing.
(136 Pac. 5.)
Mr. Justice Eakin
delivered the opinion of the court.
The liability of a defendant in an action for injuries to the person may depend upon violations of a stat*340ute and also upon elements contributing to the injury that disclose a liability at common law not covered by the statute. The issues of fact were not the same under each, and what these issues are must be determined by the court and stated to the jury. It must not be left to determine the law for itself and to apply it to the facts indiscriminately.
6. Counsel urge that under the statute the elevator shaft or well was not inclosed five feet high on each floor, and that for such omission the jury might find defendant liable without regard to whether such negligence was the proximate cause of the injury; but the condition of the inclosure of the well at other places than where the injury was received was wholly immaterial. The negligent act or the omission of the duty for which the damages may be recovered must be the proximate cause of the injury: 29 Cyc. 600; Wallace v. Suburban Ry. Co., 26 Or. 174 (37 Pac. 477, 25 L. R. A. 663); Hartvig v. N. P. Lumber Co., 19 Or. 522 (25 Pac. 358).
7. If the court was of the opinion that the complaint was brought upon the statute, alleging also elements of liability not included in the statute, but constituting a ground for liability at common law, it should have distinguished them in its instructions and specifically stated the issues of fact and the defense admissible to each, instead of submitting them to the jury to determine the issue of law and to adopt its own view for the application of it to the facts.
The petition is denied.
Reversed : Rehearing Denied.