I concur in the reversal of the judgments in the Sutton, Snow, and Waters Cases. I think the judgment should be reversed, also, in the E.H. Berg Case.
It is conceded that the Otis Elevator Company, in installing the cables and making the repairs on the elevator of the hotel company, was an independent contractor. The court so charged the jury in all of the cases. The Gertrude Berg Case, 64 Utah, 518,231 P. 832, heretofore considered by this court, and these cases, arose out of the same accident. It is conceded by all parties concerned that the evidence in that case and in these cases as to all of the material facts is the same. In the Gertrude Berg Case this court, by unanimous opinion, in effect held that, to render the Otis Elevator Company *Page 149 liable for injury to a third person, between whom and the company there was no contractual relation of privity, it was necessary to show, among other things, that the hotel company was without knowledge or means of knowledge of the alleged defect and of its dangerous condition, or that the defect was of such latent character as not to be discoverable by the hotel company by ordinary inspection, and that on the evidence, which in such particular was the same as in these cases, such question was one of fact for the jury. In that case this court proceeded on the theory that, where the proprietor or contractee accepted the work or an instrumentality from an independent contractor in a defective and dangerous condition, with knowledge thereof or discoverable by reasonable inspection, the duty devolved on the proprietor or contractee to make the instrumentality reasonably safe, and if he fails to perform such duty, and a third person is injured, it is the negligence of the proprietor or contractee that is the proximate cause of the injury, and that the contractor, upon the acceptance of the work or instrumentality by the proprietor or contractee, becomes liable to a third person only when the dangerous condition of the work or instrumentality created by him is imminently dangerous, and the contractee or proprietor "had no knowledge of the dangerous condition or defect, which was so concealed that reasonable inspection by the contractee would not have discovered it." In the statement of the case this court, among other things, said:
"Without reviewing the evidence in detail, it is sufficient to say that respondent's testimony tended to prove that the installation of he cables was defective, and done in such a manner as to make the elevator imminently dangerous to the hotel guests, who the appellant knew would use it; that appellant knew of the defective and dangerous condition of the cables; that the hotel company had no knowledge of the defective condition; that the defective work done by appellant was so concealed that it could not have been discovered by reasonable inspection; and that the cables parted and the elevator fell as the result of the defective and improper installation of the cables. These ultimate facts brought the case within the rule of liability and required a submittal of the issues to the jury." *Page 150
In considering the law applicable to the case, this court stated the general rule thus:
"An independent contractor is not liable for injuries to third persons, with whom he has no contractual relations, occurring after he has completed his work and turned it over to the owner or person with whom he has contracted, and the same has been accepted by the owner or person with whom the contractor made his contract, even though the injury to the third person resulted from negligence of the independent contractor in carrying out his contract."
The court stated that such proposition was supported by nearly 100 cases cited by the appellant and was approved by the textwriters. But the court observed that there were exceptions to such general rule and in such particular then stated:
"The decided weight of authority supports the proposition that, when an independent contractor has done work on an instrumentality and by his work makes the instrumentality imminently dangerous to those he knew would use it, he remains liable, even after the completion of his work and its acceptance by the contractee, to third parties injured as the result of his negligence if the contractor knew or in view of the peculiar circumstances of the case should have known the dangerous condition by him created, and the contractee had no knowledge of the dangerous condition or defect which was so concealed that reasonable inspection by the contractee would not have discovered it."
In another portion of the opinion the court again said:
"The sensible and logical position seems to us to be that if the contractor does defective work which renders the instrumentality dangerous, he becomes liable in damages to one injured if he knew, or under the particular circumstances should have known, that the instrumentality was delivered to the contractee in a condition of imminent danger, and in a condition in which reasonable inspection would not have revealed the defect and danger."
The same thought was again declared in denying the petition for a rehearing. I thus think it clear that this court, in the Gertrude Berg Case, announced the rule that to render an independent contractor liable for an injury to a third person for alleged negligence of the contractor, occurring after *Page 151 the completion of the work or instrumentality and after it was turned over to and accepted by the owner or contractee, it, among other things, is essential to show that the owner or contractee was without knowledge of the alleged defect and dangerous condition or that the defect and danger were so concealed or of such a latent character as not to be discoverable by reasonable or ordinary inspection on the part of the owner or contractee, to which, as I think should be added, where in the use or in the letting of or passing the instrumentality a duty of inspection was owing by him to the injured person, but which was unnecessary to state in the Gertrude Berg Case because it was conceded, and it is the indisputable law, that the hotel company, the owner and contractee, in carrying its guests and passengers on the elevator used, operated and controlled by it, owed them an active duty of inspection. And in their briefs on these appeals counsel for respondents say:
"We agree with the appellant that, if it could be said that the Bonneville Hotel Company knew of the defective attachment of the cones in question, or by reasonable inspection could have discovered it, then under the decision in the Gertrude Berg Case the Otis Elevator Company would have been exempt from liability. But in that particular we differ with counsel upon the facts involved in these cases with respect to such knowledge, or lack of knowledge, by the Bonneville Hotel Company."
The appellant contended in such respect that such knowledge or means of knowledge was conclusively shown, and for such reason, among others, it was entitled to directed verdicts; the respondents, that the question was one of fact for the jury. The principle so announced in the Gertrude Berg Case is recognized, among others, in the cases of Casey v. Bridge Co.,114 Mo. App. 47, 89 S.W. 330; Huset v. J.I. Case Threshing Mach. Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303; Schubert v. J.R. Clark Co.,49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, 32 Am. St. Rep. 559;M.K. T.R. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 59 L.R.A. 711, 93 Am. St. Rep. 287; Sider v. General Elec. Co., *Page 152 203 A.D. 443, 197 N.Y.S. 98; and is perhaps best stated in Wharton, Law of Negligence (2d Ed.) §§ 90 and 91, that:
"Thus a person who is guilty of negligence in manufacturing a dangerously inflammable oil is liable for the damage done by it, no matter how numerous may be the agents by whom it is innocently passed. `Certainly one who knowingly makes and puts on the market for domestic and other use such a death-dealing fluid, cannot claim immunity because he has sent it through many hands.' When, however, a vendee or agent knows the explosive or otherwise perilous character of a compound, and then negligently gives it to a third person, who is thereby injured, the causal connection between the first vendor's act and the injury is broken,"
— and by Beven on Negligence, vol. 1, at page 50, who, in criticizing the case of Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455, and expressing a contrary view says:
"The court held that, so far as the plaintiffs were concerned, it did not lie in the mouth of the defendant to aver the negligence of the intermediate salesmen, and thereby to avoid the consequences of his own neglect, and that the plaintiff could recover. Had any such duty to test the article sold existed on the part of the intermediaries, it could not have been said that the injurious result to the plaintiff's wife would certainly have followed; and if the intermediate chemists had a duty of examination, their failure to discharge the duty would have absolved all antecedent agents, for subsequently to their neglect there would have been the intervention of an independent volition, in which case the neglect of the defendant was not the cause of the injury, since, had it only been his neglect, the spurious article would never have reached the plaintiff's wife; but the subsequent neglects directed the injurious agency, otherwise innocuous, against her."
It is claimed that the cases of Bryson v. Hines, (C.C.A.) 268 F. 290, 11 A.L.R. 1438, Waters-Pierce Oil Co. v. Deselms,212 U.S. 159, 29 S. Ct. 270, 53 L. Ed. 453, and Clement v. Crosby Co., 148 Mich. 293, 111 N.W. 745, 10 L.R.A. (N.S.) 588, 12 Ann. Cas. 265, hold to the contrary, and that McPherson v. BuickMotor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440, and Johnson v. Cadillac Motor Car Co., (C.C.A.) 261 F. 878, 8 A.L.R. 1023, imply as much. *Page 153
It is to be noted that in Bryson v. Hines the cases there cited do not support the proposition, except the dictum in the Waters-Pierce Oil Co. Case, and that the matter is neither discussed nor reasoned out, but merely asserted.
In Waters-Pierce Oil Co. v. Deselms the oil company negligently mixed gasoline with coal oil and sold it to a dealer as coal oil, who, in the course of trade, sold two gallons of the mixture to the plaintiff, a subvendee,, whose wife and children were killed by an explosion from the use of it. In that case it was indisputably shown that the product was sold by the oil company to the dealer and by the dealer to the plaintiff as coal oil and that neither the dealer nor the plaintiff had any knowledge that the product contained gasoline or that it was other than coal oil, and the case was tried and submitted to the jury on the theory that both the dealer and the plaintiff were without knowledge or means of knowledge of the mixture of the product and the explosive character created thereby. Such clearly appears from the opinion. In such respect the court said:
"In view of the tendencies of the proof as to the entire absence of knowledge by Powers Deselms [the dealer], when purchasing from the oil company, and the ignorance of Deselms [the subvendee] when he bought from the firm, of the character of the fluid, it is certain that in the case before us the act of the oil company, in any view, was the proximate cause of the accident, as no other independent and efficient cause or wrong can be legally said to have occasioned the same."
But the court further observed that:
"Because we confine ourselves to the particular facts of the case before us we must not be understood as holding, in view of the dangerous character of the fluid and the putting of the same upon the market by the oil company, with the expectation that it would be retailed to the public, and the violation of the statutory regulations and prohibition concerning the sale of such article, * * * that * * * a recovery against the oil company might not have been justified, even if the proof had established that Powers Deselms had been informed by the oil company of the dangerous character of the mixture."
It is thus seen that what the court said in such latter respect was mere dictum. *Page 154
In Clement v. Crosby Co., it was held that a manufacturer, who knowingly mixes and puts upon the market without notice a highly dangerous article, a dangerous compound for blacking stoves, which was liable to explode, and who deceitfully and artfully withheld from the public knowledge of its character, was liable to one who purchased the same without warning from a dealer and who was injured in attempting to use it, and that a manufacturer and another who sells the dangerous article, knowing it to be such, without warning to the consumer, may be sued jointly for injury which the consumer receives through an attempt to make use of it. The case went off on a demurrer to the complaint. The declaration stated that the manufacturer placed a dangerous compound on the market, and at the same time deceitfully and willfully concealed from the public its dangerous elements and properties. The court said that the declaration in effect amounted to a charge of fraudulently putting the compound on the market and held the declaration good as against the manufacturer. In the course of its opinion the court observed that in such cases the manufacturer would be liable though the dealer had knowledge of the dangerous nature of the article and sold it without warning. If it be assumed that in such case it was averred that the dealer had knowledge of the dangerous character of the article, and if it be further assumed that the rule under consideration is the same in a case where an independent contractor makes repairs on an instrumentality for the owner or contractee and when completed turns it over to him in a defective and dangerous condition as in a case where the manufacturer sells to a dealer a poison or an explosive compound, then Clement v. Crosby Co., as well as other cases on the same point, are contrary to the Gertrude Berg Case.
Johnson v. Cadillac Motor Car Co. and MacPherson v. BuickMotor Car Co. are automobile cases, where a manufacturer sold a car to a dealer and the dealer to a subvendee or purchaser, who was permitted to recover from the manufacturer *Page 155 on account of an injury sustained by him, due to a defective wheel, the spokes of which were made of decayed or fragile timber. The Cadillac Case is somewhat weakened by a former and contrary decision of the same court in the same case (221 F. 801), 137 C.C.A. 279, L.R.A. 1915E, 287, Ann. Cas. 1917E, 581), and seems to be based on a decision of the New York court in the Buick Case, which, notwithstanding the doctrine of the law of the case, was followed by the federal court, instead of its own decision on the prior appeal of the same case between the same parties and upon the same pleadings and evidence. The only difference on the two appeals in the Cadillac Case was a change of judges. However, the Buick Case in some particulars seems to be well considered and well founded and is supported by prior decisions of the New York court.
But, assuming that correct results were finally reached in those cases, still, fundamentally, I perceive a distinction between such cases and the one in hand. In neither of the automobile cases was there anything said, or any reference made, as to the knowledge or means of knowledge, or the want of it, of the dealer or intermediary as to the alleged defect and dangerous condition of the wheel. Thus whether knowledge or means of knowledge of the dealer was regarded as an essential or even a material element is not disclosed, for not anything is said about it in either of the cases. Further, it was made to appear in each of the cases that the car in a finished condition, with the wheels painted and varnished, was delivered by the manufacturer to the dealer. So the alleged defect, "the spokes made of dead and dozy timber," was at least not obvious, nor, in the absence of anything to put the dealer on inquiry, was he in duty bound to make an inspection, to ascertain whether the automobile and its parts were constructed of proper and suitable material and reasonably safe for the use and purpose for which it was intended; and to ascertain whether the spokes, after being painted and varnished and the car delivered in a finished condition, were made of seasoned hickory or other suitable timber, would *Page 156 have required an inspection or test as to an alleged and latent defect, which the dealer, under the circumstances, was not required to make, nor was there otherwise any active duty imposed upon him to make an inspection or test before passing the car on to a purchaser. He might become liable to the purchaser for a breach of warranty either express or implied, but that is another matter.
But so far as concerns the matter in hand the dealer, under the circumstances so far as disclosed, was a mere innocent or unconscious agent or vehicle through which the automobile in its alleged defective and dangerous condition passed from the manufacturer to the subvendee or purchaser, and thus the alleged negligence of the manufacturer was the proximate cause of the injury as no other independent and efficient cause or wrong intervened, or can legally be said to have caused the injury. If, however, the dealer had been one who himself purchased the automobile from the manufacturer for his own use, and used it as a common carrier of passengers, and in doing so one of his passengers was injured by a collapse of the defective wheel, or other parts of the automobile, I perceive the application of a different rule, for in such case an active duty was owing from him as such carrier to his passengers to make at least a reasonable inspection from time to time as the nature of the business and due care required; and if in such case he had knowledge of the alleged defect and dangerous condition, or the defect and condition were such as to be discoverable by reasonable inspection, and if with such knowledge or means of knowledge he used or continued to use the automobile without repairing the defect or rendering the automobile reasonably safe, and a passenger is injured, then the negligence of such carrier and intermediary becomes the intervening and the proximate cause of the injury. But if the defect and dangerous condition were so concealed or latent as not to be discoverable by reasonable inspection, and were unknown to the intermediary, then the operation of the negligence of the *Page 157 manufacturer is not broken, but continues, and is regarded as the proximate cause of the injury.
Here the hotel company owed its passengers an active duty of inspection of all parts of the elevator which prudence might suggest were likely to become out of repair or defective, and if in the performance of such duty the alleged defect and dangerous condition were such as to be discoverable by such inspection, or if the hotel company otherwise knew thereof, and with such knowledge or means of knowledge continued to use such elevator in such defective and dangerous condition, without repairing it or rendering it reasonably safe, then such negligence, and not that of the Otis Elevator Company, became the proximate cause of the injury. I am aware there are cases which may be said to hold to the contrary, and that in such case the manufacturer or independent contractor and the intermediary are both liable; but such, as I understand it, is not the holding in the Gertrude Berg Case. Whatever view, as an original proposition, might be entertained as to the want of knowledge or means of knowledge of the hotel company, the intermediary, being an essential element to render the Otis Elevator Company liable, I think the question settled by the Gertrude Berg Case. And inasmuch as the appellant and all the respondents on these appeals have asserted their unqualified reliance on the Gertrude Berg Case, and do not question any principle of law therein announced, I think the rule there stated should be applied and followed on these appeals.
In all the complaints of the respondents, and as pointed out by Mr. Justice THURMAN, it is averred that the hotel company, the contractee and owner of the elevator, had full knowledge of the alleged defect of the elevator and the imminence of the danger created thereby. If the Gertrude Berg Case, as to the requisite of want of knowledge or means of knowledge of the contractee of the alleged defect and danger to render the contractor liable, is to be followed, as I think it should be, such allegations in the several complaints are not only irreconcilable with the statements of the respondents *Page 158 in their briefs, that if the hotel company knew of the defect and danger, or by reasonable inspection could have discovered them, the Otis Elevator Company was not liable, but seemingly prevent recovery by the respondents against the Otis Elevator Company. I see no escape from that as long as such allegations remain as a substantive part of the complaints, except as to such of the cases as were tried and submitted on the theory that knowledge or means of knowledge of the hotel company or the want of it was an issue, and as such tried and submitted to the jury without objection.
Evidence was given by the respondents tending to show that the hotel company was without notice or knowledge, or means of knowledge, of the alleged defect and danger, and by the Otis Elevator Company that whatever alleged defect and danger there were were known to the hotel company or discoverable by it by ordinary or reasonable inspection. But in neither the Sutton nor the Snow Case was the jury charged the principle of law, either in substance or effect, that to render the Otis Elevator Company liable it was necessary for the jury to find among other thnigs, that the hotel company was without knowledge or means of knowledge of the alleged defect and danger; and nowhere in either of such cases was the jury given to understand that to render a verdict against the Otis Elevator Company it was necessary for them to find that the hotel company was without knowledge or means of knowledge of the alleged defect and danger. In the court's charge to the jury in the E.H. Berg Case the question was only hinted at, but as I think was not sufficiently or properly put before the jury, at least not to the extent to convey the thought to the jury that to render a verdict against the Otis Elevator Company it was necessary for them to find that the hotel company was without knowledge or means of knowledge of the alleged defect and danger. In the Walters Case the jury were charged that to render a verdict against the Otis Elevator Company it was necessary to find that the hotel company had no knowledge of, and by reasonable inspection could not have discovered, *Page 159 the alleged defect prior to the happening of the accident. Thus, as to this case, it may well be said that it was tried and submitted on the theory that knowledge or means of knowledge of the hotel company or the want of it was an issue and as such was submitted to the jury, and that in such case the averment in the complaint that the hotel company had full knowledge of the defect and danger was disregarded or waived and the case tried as though no such averment had been in the complaint.
Because the Sutton, Snow, and E.H. Berg Cases were not so submitted to the jury, and thus not tried as though such question was an essential issue or element, and the averment in the complaint that the hotel company had full knowledge of the alleged defect and danger thus not having been waived or disregarded by a submission of the case to the jury on a theory inconsistent with such averment, I think the judgment in each of them should be reversed, also, for such reason. But the Waters Case, for the reason just stated, should not be reversed on such ground, but on the ground stated in the opinion by Mr. Justice THURMAN, denying the appellant its challenges of jurors, and also for rulings made relating to evidence similar to those in the E.H. Berg Case.
The point or question as to the theory on which a case was tried and submitted is not dependent upon or determinative of questions of failure to charge, burden of proof, or sufficiency or insufficiency of evidence; and observations as to the former question should not be carried to such latter questions, to which they are not applied nor pertinent. The point now in hand is not, did the court err in failing to charge the jury on the subject, but was the averment in the complaint, that the hotel company had full knowledge of the alleged defect and of the imminence of the danger thereby created, disregarded or treated as waived by the submission of the case to the jury on a theory inconsistent with such averment? To ascertain that, the evidence adduced, among other things, is to be looked at, to see the theory on *Page 160 which the case was presented and the charge to see the theory on which it was submitted to the jury. When the court in the Waters Case submitted to the jury the question of whether the hotel company had or had not knowledge or means of knowledge of the alleged defect and danger, and directed the jury, if they found such question in the affirmative, to render a verdict in favor of the Otis Elevator Company, it is quite apparent that the averment referred to in the complaint was disregarded, and the case submitted on a theory inconsistent therewith, and that, too, regardless of whether requests to charge were or were not made by one or the other, or by neither, of the parties, and regardless of the question of burden of proof, or of the conclusiveness or inconclusiveness of the evidence in such particular.
In the other cases, where no such question was submitted to the jury and no such direction given them, and the jury not required to pass on the question of whether the hotel company had or had not knowledge or means of knowledge, and under the charge permitted to find for the plaintiff and against the Otis Elevator Company, without considering or passing on the question of such knowledge or means of knowledge, it is just as apparent that those cases were not sumitted to the jury on a theory inconsistent with the averment referred to, and that, too, regardless of further questions of burden of proof, or want or requests to charge or the conclusiveness or inconclusiveness of the evidence. In the Waters Case the jury, under the charge, by their verdict of necessity found that the hotel company had neither knowledge nor means of knowledge of the alleged defect or of the danger. In the other cases, the jury, to render a verdict for the plaintiffs against the Otis Elevator Company, not being required to so find, and being permitted to render such a verdict without a finding, or considering or passing on the question, it seems clear that the verdicts rendered in such cases did not pass on or dispose of such question. Thus, with respect to such considerations, observations or suggestions as to burden of proof, whether requests to charge were *Page 161 made or not, the conclusiveness or inclusiveness of the evidence, are, as I think, not to the point nor to the purpose; nor, as applied to these considerations, is the observation that such cases are ruled because of the court's failure to charge.
As to the evidence, it is not contended by the appellant, except as averred in the complaint, that there is any direct evidence to show actual knowledge of the hotel company, but that the evidence to show means of knowledge is conclusive, while the respondents but contend that such question was one of fact for the jury. And as one ordinarily is bound by the facts as alleged by him, and since the respondents in unqualified language alleged that the hotel company had full knowledge of the alleged defect and danger, and as long as such averments remain as a substantive part of the complaint, or otherwise are not disregarded or treated as waived, as heretofore considered, I do not well see how on the record, it may be said there is not anything to show knowledge or means of knowledge of the hotel company; nor in view that the complaint is against the three defendants, equally and jointly charging all of them with the charged negligence and demanding judgment against all of them, do I see how the language in paragraph VI of the complaint, "And plaintiff alleges that the said defendants then and there well knew the careless and negligent manner in which the said cables were attached to the said cones, and then and there well knew that there was great and grave and imminent danger of the said cables breaking in said cones and separating therefrom," etc., and other similar language in the complaint, may be construed to mean knowledge only of the defendants Otis Elevator Company and Clark, and not of the hotel company.
If, as is contended, the words, "the said defendants," as used in paragraph VI, mean only the defendants Otis Elevator Company and Clark, and not the defendant hotel company, and since such words refer, not only to the allegation of knowledge, but also to the allegations of negligence *Page 162 and to everything else in such paragraph alleged, then not anything whatever is charged against the hotel company, and naming as a defendant in the cause was but a vain thing, and that, when the plaintiff "prayed judgment against the said defendants," judgment was prayed against the Otis Elevator Company and Clark only, and not against the hotel company. Nowhere do the respondents, in their briefs or otherwise, contend that the words "the said defendants," as used in paragraph VI, or in any other portion of the complaints, mean the two defendants only, and not all of them. And I do not think the complaints open to the contention that such words mean only two, and not all, of the defendants.
I do not concur with Mr. Justice THURMAN that the evidence referred to by him was properly stricken in the E.H. Berg Case. It is to be noted that in this, as well as in all of the other cases on this appeal, the appellant, the Otis Elevator Company, denied the alleged defect and danger and all the charged negligence against it, and denied that if the cables broke, or pulled loose or became detached from the cones, that the elevator "would be made or caused to fall," and injury result, "if the said elevator had been equipped with proper safety appliances." The appellant did not allege that the elevator was not equipped with proper and suitable safety devices, and did not allege that the hotel company was negligent in such respect. However, it contended that, had the elevator been equipped with proper and efficient devices, the fall of the elevator would have been arrested before it struck the basement, and that the injury would have been prevented. It gave evidence to show that safety appliances or devices were used by all reputable elevator concerns for the purpose of stopping the descent of the elevator, no matter what was the cause of its falling or dropping, whether due to overspeeding the elevator or the breaking of the cables, and that with the weight of the cage, the counterweights, the weight of the passengers, and the distance the elevator dropped, had it been equipped with *Page 163 proper and efficient devices, it would have been arrested and stopped within 12 feet from where it started to drop, and more than 20 feet from the floor of the basement where it struck, and gave evidence to show that the devices with which the elevator was equipped were defective, inefficient, and unsafe. This evidence, on motion of the plaintiff and over the objection of the appellant, was stricken by the court.
The appellant further offered to prove, but which offer upon the plaintiff's objection was denied, that the safety devices were in a defective condition, so that they would not operate or perform the function for which they were designed, and afforded no protection to the elevator or to the persons riding therein, in the event the elevator was overspeeded, or the cables broke, or the elevator through other causes dropped or fell while being operated, and that such defect and unsafe condition of the safety devices were well known to the hotel company; that it failed to remedy such defect or condition; that at the time of the accident the elevator obtained a sufficient speed to cause efficient safety devices in proper condition and repair to operate and stop the car; and that, had the elevator been equipped with proper and efficient safety devices, the elevator on the occasion of the accident could have been brought to a gradual stop without injury to the passengers. Similar rulings were made in the Waters Case.
I think the court erred in striking and rejecting the evidence. True, appellant did not affirmatively plead such negligence on the part of the hotel company; but the evidence was not stricken or rejected because of that. The appellant was, however, entitled to the evidence under the general issue. 29 Cyc. 585; 14 Ency. Pl. Pr. § 244. Apparently the evidence was stricken and rejected on the ground that the breaking of the cables was due to the negligence of the appellant, and was the sole or a concurring and contributing cause of the injury, and hence the stricken and rejected evidence was regarded as immaterial. In that I think the court assumed too much. Of course, if the appellant was *Page 164 negligent in the particulars as alleged, and if such negligence was operative and concurring and contributing at the time of the injury, the appellant would be liable, though the injurious result was also concurred in and contributed to by the hotel company, on the principle that, if a person suffers damage as the proximate result of the negligence of two others, and the damage would not have occurred through the negligence of either alone, both are liable to the person injured. But such were questions to be determined and not to be assumed by the court.
The appellant denied the alleged defect and danger and all the negligence charged against it, and gave evidence to support its denial. Whether it was negligent, and whether such negligence was the proximate cause of the injury, were, on the record, questions of fact. It was so held by this court in the Gertrude Berg Case on substantially the same evidence as here. The court could not determine such questions as matter of law. When a defendant is charged with negligence and a resulting injury therefrom, he may, under the general issue, show that the negligence of another, of a third party, and not that of the defendant, was the proximate cause of the injury. When evidence respecting such a subject is adduced, whether such third person was or was not negligent, and whether such negligence was the sole proximate cause, or a concurring and contributing cause, ordinarily are questions of fact. Before the court here was warranted in striking and rejecting the proffered evidence, it was required to hold as matter of law that the appellant was guilty of the charged negligence, and that such negligence was the sole proximate cause of the injury, or a concurring and contributing cause. On the record the court was not justified in so holding. Nor did the court in fact so hold, for it submitted such questions to the jury, as was its duty.
It is argued that the evidence was properly stricken, and the offer properly rejected, because the evidence respecting the defective and insufficient safety devices bore no relation to the breaking of the cables, and in no sense as a contributing *Page 165 cause thereof, and hence the evidence was immaterial. Such argument again involves the proposition that appellant as matter of law was responsible for the breaking of the cables and that its negligence was the sole proximate cause of the injury. The appellant claimed, and gave evidence to supuport it, that the breaking of the cables was not due to any negligence on its part, and the court submitted such question to the jury, as well as whether such negligence was the proximate cause of the injury. Though the stricken and rejected evidence respecting the defective and insufficient safety devices did not relate to the cause of the breaking of the cables, and bore no relation to the charged negligent acts of the appellant, still that did not justify striking and rejecting the evidence.
I do not understand the law to be that evidence respecting the negligence of a third person to be material or relevant must in some manner or degree relate to the acts of the charged negligence of the defendant, whether of omission or commission. It, of course, must bear some relation to the cause of the injury, but not necessarily to the charged negligent acts of the defendant. It may be wholly independent of such acts; indeed, a wholly independent and intervening cause, but for which the injury would not have occurred. Such was the claim of the appellant, and to support which evidence was adduced and proffered by it. It showed and offered to show that it was the duty of the hotel company to equip the elevator with proper and efficient safety devices, so as to arrest or stop the dropping or falling of the elevator, no matter from what cause, whether from overspeeding, or breaking of the cables, or other cause, and that the hotel company neglected to do so, and negligently suffered and permitted the elevator to be run and operated with defective, inefficient, and unsafe devices, which, as appellant claimed, was the direct and proximate cause of the injury, and that, had the elevator been so equipped with proper and efficient devices, it, notwithstanding the breaking of the cables, could have been stopped and the injury avoided. *Page 166
It also is argued that the hotel company was not required to anticipate negligence on the part of the appellant or take precautionary measures to guard against it. That, as it seems to me, is not the point. The argument again necessarily is based upon the assumption that the appellant was guilty of negligence as matter of law, and that such negligence was the proximate cause of the injury. As already observed, whether the appellant was negligent, and whether such negligence was the proximate cause of the injury, or a concurring and contributing cause, were issues to be tried, and which in fact were submitted to the jury, and when the court struck and rejected the evidence it could not assume that the appellant as matter of law was guilty of negligence, or that such negligence was the sole proximate cause of the injury, or a concurring and contributing cause, and in the midst of the trial deny the appellant the right to further litigate the question.
The evidence adduced and proffered by the appellant in no particular was offered on the theory that the hotel company was required to anticipate negligence on the part of the appellant, or of any one, or that it was required to take precautionary measures against it. The hotel company owed a higher duty and a more vigilant exercise of care with respect to its passengers than did the appellant. It owed a duty to them, and to these respondents as such, to safely carry them, and that to do so, so the appellant offered to prove, it was, among other things, its duty to equip its elevator with proper and efficient safety devices to guard and protect its passengers, and the respondents as such, against accident and injury from a dropping or falling of the elevator, no matter what the cause, whether accidental or otherwise, resulting from its operation by the hotel company, and that such was the purpose and function of safety devices, but that the elevator was not so equipped. It was upon such theory that the appellant adduced and proffered the evidence stricken and rejected. I think it was entitled to develop such theory, and show, if it could, that the claimed defective and *Page 167 inefficient safety devices were the direct or intervening and proximate cause of the injury, and but for which the injuries complained of would not have resulted, and that with respect to such matters the appellant was entitled to take the judgment of the jury and not that of the court.
I therefore think the judgments in the E.H. Berg and in the Waters Cases also for such complained of rulings should be reversed, and that the causes, as well as all of the other causes should be remanded for new trials.