On February 24, 1915, Frank J. Mc-Kenna, husband of Helen A., and father of Frances Palmer McKenna, was killed by falling down an elevator shaft in a building owned by Leo P. Grunbaum' and leased by him, in 1909 and 1910, to Studebaker Brothers Company of Utah, a corporation, hereinafter called the company.
The building consisted of two stories and a basement and, qn March 30, 1914, the company leased certain rooms on the *51first and second floors to McKenna. At that time there was no entrance to the freight elevator from the room on the first floor let to him and thereafter nsed as a garage. It was stipulated in the lease that McKenna should have the free use of the elevator for carrying heavy freight and, until the company should provide an entrance from the room above mentioned, he should have a right of way thereto through a portion of the premises retained by it. The instrument also contained an option that McKenna might, at a future time, lease additional space in the building.
The entrance, thereafter constructed, consisted of a passageway, wide enough for an automobile and five or six feet long, extending from the garage-room on the first floor to the elevator. There was also an entrance from a room on the same floor, occupied by the company, and its employees and those of McKenna used the elevator in common. These entrances were equipped with doors which were usually closed in winter and, there being no artificial light therein, the shaft was dark. The floor of the entryway leading from the garage was on an incline, there being a fall of eleven and a quarter inches from the door to the shaft, which Grunbaum, after the accident, caused to be reconstructed and made level.
On September 14, 1914, Grunbaum caused a gate to be installed at the elevator shaft in the entrance leading from the garage. This gate was four'and a half or five feet high and as long as the entry was wide. It was intended to work automatically, in slots attached to the walls, in such a way that when the elevator was at the first floor the gate would be up, but when the elevator left the floor the gate would drop down and obstruct passage from the entry into the shaft.
Part of the time this device worked satisfactorily and at other times, due probably to the material from which it was constructed being too light and it being insufficiently braced and one of the slots which had not been properly fastened to the wall getting sprung out of position, the gate would catch and hang, and when the elevator was at the second floor the gate would remain suspended so far above the first floor that it would leave the opening in the shaft unobstructed.
*52On January 16, 1915, the company leased to McKenna the property occupied by' him together with other portions of the building. At that time the lease of March 30, 1914, was in full force, with more than four years yet to run, and it is not clear whether it was the intention of the parties that the new lease should supersede the old one or whether it was intended to continue the relation of landlord and tenant then existing in force, so far as it affected the part of the premises then in possession of the lessee. The case seems to be presented on the theory that the second lease supplanted the first, and that theory will be adopted for the purposes of this opinion.
While McKenna conducted a garage and machine-shop business in the building in question, he did so by agents and employees, he being employed elsewhere. It was his custom to visit the premises occasionally, for a few minutes at a time, usually early in the forenoon or late in the afternoon.v The record does not disclose that he was in the elevator on more than two occasions, once a month or more before and again a day or two before his death. On these occasions the gate was not working properly and gave trouble.
On one or two occasions an employee of McKenna complained to the company’s manager that the gate was not working properly, and the latter promised to have it corrected. This promise was communicated to McKenna a short time before the accident.
On the morning of the accident McKenna came into the garage at about 8 or 8:30 o ’clock; it was a dark, cloudy morning and the sliding door on the garage wall at the entrance of the elevator shaft was partly closed, leaving an open space about two and a half or three feet wide. The shaft was dark, the elevator was at the second floor, and the gate was stuck and suspended near the ceiling. McKenna called to a companion, who had accompanied him to the garage, to come with him, walked rapidly down the incline, fell down the shaft and was killed.
The lease of January 16, 1915, after describing the property let, stating the term for which it was to run, the amount of *53rent and when the same was payable, recites: “It is a further consideration of this lease that the said party of the second part [McKenna] shall have the free use of the elevator for carrying heavy freight up to the machine-shop. ’ ’ Thereafter, as theretofore, the employees of the parties used the elevator in common and control of it did not pass from the company. (Ellis v. Waldron, 19 R. I. 869, 33 Atl. 869.)
After introducing evidence tending to establish the foregoing facts and tending to prove the amount of damage they suffered by reason of McKenna’s death appellants rested. Respondents moved for a nonsuit, which was granted, and a judgment of dismissal was entered.
The motions for nonsuit were based on a number of grounds, all of which have been considered, but only two of which will be discussed: First, contributory negligence, in that McKenna walked into the elevator shaft knowing the defective condition of the gate; second, when McKenna leased the premises the gate was defective and neither of the defendants owed him a duty to put or maintain it in a better condition than it was when his tenancy commenced.
In Donovan v. City of Boise, 31 Ida. 324, 171 Pac. 670, this court said: “A motion for nonsuit admits the truth of plaintiff’s evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it.”
In that case we also held: “Contributory negligence . ... is generally a question of fact for the jury and only becomes one of law, authorizing a nonsuit, when the evidence introduced on behalf of the plaintiff is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances.” (See, also, Smith v. Oregon Short Line R. R. Co., 32 Ida. 695, 187 Pac. 539.)
*54Even though McKenna knew the gate had not been in working order a day or two before his accident, it cannot be said, as a matter of law, he was guilty of negligence. In Davis v. Pacific Power Co., 107 Cal. 563, 48 Am. St. 156, 40 Pac. 950, it is said: “People are liable to lapses of memory with reference to facts with which they are daily confronted. It would be for the jury to say whether such lapse of memory was negligence taking into consideration all the circumstances.”
With respect to the second proposition it may be said that whether or not there was evidence which should have been submitted to the jury as to the liability of the company is to be determined by application of the rule that it is the duty of the landlord to use reasonable care to keep an elevator which remains under his control and is used in common by his tenants, or by himself and his tenants, in as safe condition as it was apparently in when the tenancy began. (Flanagan v. Welch, 220 Mass. 186, 107 N. E, 979; Bogendoerfer v. Jacobs, 97 App. Div. 355, 89 N. Y. Supp. 1051; Ward v. Blouin, 210 Mass. 140, 96 N. E. 61; Greene v. Pearlstein, 213 Mass. 360, 100 N. E. 625; Oles v. Dubinsky, 231 Mass. 447, 121 N. E. 405; Andrews v. Williamson, 193 Mass. 92, 118 Am St. 452, 78 N. E. 737.)
In the ease last above cited it is said: “The phrase ‘in such condition as it was in or purported to be in at the time of the.letting’ means such condition as it would appear to be to a person of ordinary observation, and has reference to the obvious condition of things existing at the time of the letting.”
The gate was a mechanical device which worked satisfactorily at times and at other times it did not. It is true a casual observer could see how it was constructed and the material of which it. was built, but if we are to conclude from this he would be bound with notice of its defects, we must also conclude its builder knew it could not be relied on to work when he built it, for no one could be more familiar with its material and construction than was he.
Although there is evidence in the record from which it may be said to be established that McKenna knew the gate had *55failed to work on one occasion before the lease was made, it does not follow the jury was bound to find he had knowledge of its defective condition. There is also evidence which would justify the conclusion it would have required an experiment or, perhaps, a series of experiments, to have discovered the real condition of that gate at the time the lease was entered into and the question of whether it would or not, as well as whether a reasonably prudent person situated as McKenna was at the time would have made such experiments, if they were necessary, in order to discover whether or not defects existed, should have been submitted to the jury.
There is nothing in the leases from Grunbaum to the company which obligated him to improve the premises or keep them in repair, and he was not bound to do so by reason of his ownership of the building, but, having voluntarily constructed the gate, if the jury should find the death of Mc-Kenna resulted from lack of reasonable care in its construction, and that the latter did not have notice of its defects when he entered into the lease and was free from contributory negligence at the time of the accident which resulted in his death, it would be justified in finding a verdict against the former. (Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Gregor v. Cady, 82 Me. 131, 17 Am. St. 466, 19 Atl. 108; Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824, 37 L. R. A. 146; Barman v. Spencer (Ind.), 49 N. E. 9, 44 L. R. A. 815; Morton v. Early, 39 Okl. 99, Ann. Cas. 1915D, 825, 134 Pac. 436, 47 L. R. A., N. S., 314; Peerless Mfg. Co. v. Bagley, 126 Mich. 225, 86 Am. St. 537, 85 N. W. 568, 53 L. R. A. 285.) He could not excuse want of care in constructing the gate on the ground that it was the duty of the company to make and keep the elevator safe. (Poor v. Sears, 154 Mass. 539, 26 Am. St. 272, 28 N. E. 1046.)
The judgment is reversed. Costs are awarded to appellants.
Rice, J., concurs. Budge, J., did not sit with the court nor participate in the opinion. (June 26, 1920.)