(dissenting) — I am unable to agree with my associates. Plaintiff’s negligence cannot be denied. Her testimony and that of her witnesses shows that she took no account of her own safety. She had ridden frequently on the elevator, and was familiar with its operation as well as all the surroundings. It was light, and if she had looked she could have seen that the elevator was not quite flush with the floor. She says:
“Q. Up to the time you fell you hadn’t looked to see how far the elevator was above or below the floor? A. I didn’t look down, no. Q. The first time you looked down when you went to enter this elevator to go down after making this purchase was after you had fallen and you looked back to see what had caused you to fall, was that correct? A. Yes, sir. Q. Up to that time you hadn’t paid any attention to whether the elevator floor was level with the storeroom floor or not? A. I had not looked. Q. You had not looked? A. No, sir.”
The cases cited as sustaining the argument advanced in the majority opinion are cases where the complaining party had stepped into an open elevator shaft. These cases were properly decided. We are furnished with no authorities, and I have been unable to find any which were decided upon facts similar to those presented by this record. In all of the open-shaft cases, some excusatory facts will be found, so that the court can say, as a matter of law, that the party injured was not guilty of contributory negligence, or that the circumstances are such that it should be left to the jury to say whether the negligence of the plaintiff contributed to the injury. This court, in common with all others, has held that, where the facts are admitted or are all one way and but one inference can be drawn therefrom, the question of contributory negligence is one for the court and not the jury. Budman v. Seattle Elec. Co., 61 Wash. 281, 112 Pac. 356.
While the rule is that one operating an elevator is a public carrier and bound to exercise the highest degree of care, the rule is as well settled that a person using a public vehicle is bound to exercise due or reasonable care for his or her own *530safety. There is a mutual burden. As the owner owes a duty in operation, so does the public owe a duty in the use. This record not only negatives all showing of care on plaintiff’s part, but affirmatively shows that she did not use any care. As has been said many times, courts should not shut their eyes to the commonplace things of life. We all know, as plaintiff knew, that an elevator is a moving vehicle; that it rarely is stopped on the true plane of the floor; that for this very reason persons familiar with the use of elevators will, in stepping in or out, involuntarily use care, unless they be abstracted entirely, as plaintiff admits she was. The rule laid down in this case is entirely too harsh, and puts a burden upon the owners of modern office and business blocks that is not sustained by reference to the elementary principles of the law. Such elevators are operated for convenience and not for profit, and we should not hold to a rule so strict that it is impossible of performance.
I think the judgment of the lower court should be reversed and the case dismissed.
Mount, C. J., concurs with Chadwick, J.