Denied November 11, 1913.
On Petition for Rehearing.
(136 Pac. 5.)
Mr. Justice Eakindelivered 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.