(concurring in part).
I concur in that portion of the opinion which concludes that this case must bo reversed and remanded for a new trial for the reason therein stated. I cannot agree that that reason is or should be the sole ground for the reversal. The section of the Factory Act invoked is the following: “1487. Safety appliances — guarding machinery. It shall be the duty of the owner, agent, superintendent, or other person^ in charge of any workshop, manufacturing or industrial *798establishment or concern operated by machinery, either in a fixed location or when portable and moved from place to place therein in carrying on such industry, so far as practicable, to install and keep in order belt shifters or other safe mechanical means for throwing belts on and oft pulleys, install loose pulleys, and protect, by guards or housing, all gearing, cogs, belting, shafting, tumbling rods, universal or knuckle joints, set screws, saws, planes, and other machinery, when so located or used that employees may receive injury thereby. The provisions of this chapter shall not apply to agricultural pursuits.”
In my judgment, the application of this factory statute is limited to the person, “in charge of any workshop* manufacturing or other establishment or concern operated by machinery,” whether that person be the owner of that “establishment or concern,” or his agent, superintendent, or any other person whomsoever. The language used, it seems to me, clearly makes the phrase “in charge of” limit all the persons previously enumerated. This is the natural and reasonable meaning of the phraseology employed. The act bears consistent internal evidence of this construction. . The terms “employers” and “employees” constantly recur. An amendment (section 1495) removes the defense of assumption of risk as between employer and employees: “Assumption of risks. In all eases where the property, works, machinery, or appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery, or appliances to furnish reasonably safe machinery, appliances, or place to work, the employee shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment; and no contract which restricts liability hereunder shall be legal or binding.”
This defense has its foundation in the relationship between master and servant, and is, in its true sense, a creature of contract. 5 Corp. Jur. 1412, 1413; Conrad v. Springfield Ry. Co., 240 Ill. 12, 17, 88 N. E. 180, 130 Am. St. Rep. 251; Chicago & Eastern Illinois B. Co. v. Randolph, 199 Ill. 126, 131, 65 N. E. 142; Shoninger Co. v. Mann, 219 Ill. 242, 246, 76 N. E. 354, 3 L. R. A. (N. S.) 1097; St. Louis Cordage Co. v. Miller (C. C. A. 8) 126 F. 495, 63 L. R. A. 551.
There are sporadic cases where the term is loosely _ applied to relationships other than those between master and servant, involving “taking the risk,” and “running the risk,” where the danger is known and appreciated; but such action savors rather of contributory negligence than of assumption of risk. This consideration is not adduced as conclusive of the scope of the Iowa Factory Act, but as bearing upon the legislative intent. It is true that the Supreme Court of Iowa has not passed expressly upon this precise point, but the language of its opinions, I think, points strongly to the interpretation I have placed upon the application of the act. Morse v. Houghton, 158 Iowa, 279, 136 N. W. 675; Wheeler v. Brick Co., 162 Iowa, 414, 142 N. W. 400; Plew v. Horrabin & Co., 176 Iowa, 584, 157 N. W. 453; Nodland v. Kreutzer & Wasem, 184 Iowa, 476, 168 N. W. 889; Hainer v. Churchill (Iowa) 173 N. W. 882, 883.
It is significant that in four of these cases the propositions involved and decided are digested in the syllabi under the heading “Master and Servant.” In Hainer v. Churchill, tips language is found: “The propriety of such legislation has been emphasized by the increasingly great number of men, women, and children employed to serve in and about factories, mills, shops, and other industrial works, where they are exposed to danger from the operation- of machinery, and to insure observance by employers of their duty to provide their employees reasonably safe places in which to work.”
The balance of the opinion, too long for quotation here, is equally illuminating. And in Nodland v. Kreutzer & Wasem, supra, 184 Iowa, 476, 168 N. W. 889, loc. cit. 890 and 891: *799cliinery or appliances to furnish reasonably safe machinery, appliances or place to work, the employee shall not ho deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Bor shall the employee under such conditions he deemed to have waived the negligence, if any, unless the danger he imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work.’ * * *
*798“Section 4999a3 of the Supplement to the Code provides: ‘That in all cases where the property, works, machinery or appliances of an employer are defective or out of repair, and where it is the. duty of the employer from the character of the place, work, ma-
*799“The design of the Legislature evidently was to enjoin upon employers the necessity of using the greatest reasonable care and precaution to see that all dangerous machinery is efficiently guarded and that employees, so far as it can reasonably be done, shall be protected from danger in operating, or working in and about, the same.”
It is to be noted that the Oklahoma statute, providing that “the owner or person in. charge of a factory or any institution where machinery is used, shall provide,” etc., has been construed to apply only to the person “having charge” of such factory or institution. Hane v. Mid-Continent Petroleum Corp. (D. C.) 43 F.(2d) 406, and, under same title (D. C.) 47 F.(2d) 244, 246. The Iowa statute makes this construction still more obvious by the use of the word “other.” It says: “It shall he the duty of the owner, agent, superintendent, or other person in charge” etc. (Italics mine.)
In United States v. Standard Brewery, 251 U. S. 210, 40 S. Ct. 139, 140, 64 L. Ed. 229, defendants were indicted for the unlawful use of certain grains, cereals, fruits, and other products in the manufacture of beer for beverage purposes, in violation of the wartime prohibition act. The statute prohibited the use of such products for making “beer, wine, or other intoxicating malt or vinous liquors for beverage purposes.” The contention of the government was that the intention of the legislation was to include beer and wine whether intoxicating or nof. This contention was rejected by the Supreme Court, which held “that the word 'intoxicating’ qualifies the terms preceding, thus excluding from the prohibition beer which is not in fact intoxicating.” In the opinion, the court cited United States v. United Verde Copper Co., 196 U. S. 207, 25 S. Ct. 222, 49 L. Ed, 449, and quotes thus from Lord Bramwell, in Great Western Ry. Co. v. Swindon, etc., Ry. Co., L. R. 9 App. Cas. 787, 808: “As a matter of ordinary construction, where several words are followed by a general expression as here, which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to all.”
See, also, Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345, 40 S. Ct. 516, 518, 64 L. Ed. 944, which holds that: “When several words are followed by a clause which is applicable as much to the first and other words as to the last ■> * * the clause should be read as applicable to all.”
The “establishment or concern” referred to is the “business” there conducted and operated. Certainly appellant had no “charge” of this business. It neither had nor contemplated the ownership, interest in, or operation of that business. The building contained the plant, embracing the machinery, but formed no part of the “industrial establishment.” It is true that appellant, before leasing, had installed the greater part of the mechanical appliances, but the duty respecting these rested upon the person undertaking to put them in operation. The duty imposed by the act arose only when operation began.
The error in the construction of this act arises from a failure to distinguish between the classes of persons to whom the owner of a building owes a duty, and those to whom no duty is owed. This distinction is very well expressed by this court in Fraser v. Kruger, 298 F. 693, 696:
“Where premises are leased for public or semipublie purposes, and at the time of the lease conditions exist on the premises which render them unfit for the purpose intended or constitute a nuisance, and the landlord knows or by the exercise of reasonable care ought to know of the conditions, and a third person suffers injuries on account thereof, the landlord is held liable because such, third person is there at the invitation of the landlord as well as the tenant. Colorado Mortgage & Investment Co. v. Giacomini, 55 Colo. 540, 136 P. 1039, L. R. A. 1915B, 364; note L. B. A. 1915B, 364.
“The landlord is also liable, as owner of the leased premises, to third persons, who do not derive their right to be where they are from the tenant, but stand strictly on *800their rights as strangers, and who suffer injuries from a nuisance existing on the premises at the time of the letting. Maloney v. Hayes, 206 Mass. 1, 91 N. E. 911, 28 L. R. A. (N. S.) 200, 3 N. C. C. A. 137; 16 R. C. L. p. 1074, § 593.
“And where the nuisance is one which is dangerous to the general public, to persons not upon the premises, a lease of the premises does not relieve the landlord but the duty continues as to such persons so long as the nuisance remains unabated. But where the nuisance involves no danger to persons off of the premises and a tenant has taken possession and control thereof under a lease for private purposes, the owner has no further right to invite persons to go upon, the premises, and guests, servants, employees, and other persons who go upon the demised premises at the- invitation of the lessee are in the same position as the lessee himself. Not being invitees of the owner he owes them no duty except as they may claim through the lessee. Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L. R. A. 1916D, 1220; Missel v. Lennox (1st C. C. A.) 156 F. 347, 84 C. C. A. 243.”
This explains the responsibility of the owner where buildings are required by law to be built in a certain way, and with certain appurtenances, and safeguards designed for the protection of the general public or for the tenants in whole or in part of a particular building. This covers the fire escape cases, the elevator cases, attractive nuisance eases, and has especial application to the “downspout” case of Updegraff v. City of Ottumwa, 210 Iowa, 382, 226 N. W. 928, involving violation of a municipal code requiring property owners to maintain sidewalks in a safe condition. Much depends upon a retention of control by the landlord, and common use by tenants, of facilities, such as elevators, stairways, etc. See Morse v. Houghton, 158 Iowa, 279, 136 N. W. 675. This Iowa act in and of itself imposes no duty upon the owner of a building in which an industrial establishment or concern is located, but only upon the person in charge of that establishment or concern. There is no analogy between the duty it imposes and that arising from a general public duty owed by a carrier, which cannot be delegated to a lessee. Southern Ry. Co. v. Hussey (C. C. A. 8) 42 F.(2d) 70, 74 A. L. R. 1172. It is recognized that the duty imposed upon the landlord is one for the benefit of the public generally — where the lease is made for public or semipublie purposes, or where that duty arises from statutory or ordinance requirements respecting the construction or equipmént of buildings, and the character of their occupancy, to which reference has been made. It is sought to impress this general public character upon the employees and workmen in the elevator under consideration. Under the situation presented, that cannot be done. It is true that all citizens are a part of the public in an abstract sense. But the employees of this elevator cannot be so classed for the purpose of imposing liability upon appellant, under the record in this case. This law, “designed to enjoin upon employers” greater care for the protection of their employees, should be liberally construed, but the humanitarian purpose should not be extended to impose liability upon strangers to the enterprise. I think the motion for a directed verdict should have been sustained.
GARDNER, Circuit Judge, concurs in the foregoing opinion of VAN VALKEN-BURGH, Circuit Judge.