delivered the following dissenting opinion.
It is contended that the former opinion was erroneous in holding: First, that the relation of the defendant to the deceased was that of employer and em*62ployee; and, second, that the deceased and the operator of the elevator in which she lost her life were fellow-servants.
Turning to the complaint, the foundation of plaintiff’s action, we find in the words of that pleading that the “elevator was used by the.general public and the employees of the defendant in going to and from said place of business, in passing from the first floor of said building to the fourth floor thereof, which fourth floor was occupied by said Pacific Monthly Company as aforesaid.” This allegation fixes the elevator and its operation as an appliance or adjunct-of the defendant’s general business — a part of its plant. We next discover, quoting from the complaint: “That on the 2d day of September, 1910, Mabel Putnam was employed by the defendant in its office on the fourth floor of said building, and, in order to reach her work as such employee was compelled to take and use said elevator in going from the first floor of said building to the fourth floor thereof, and that on said day, while -going to her work as such employee, she entered said elevator on the first floor of said building.” These allegations fix the character and capacity of the decedent at the time the accident happened. She was either employed or she was not employed by the defendant when the fatal accident occurred. The complaint says she was employed, and this is not traversed. This court has no right to deny it, or to consider it amended on appeal, so as to change the decedent from an employee to a passenger nolens volens. Then, too, as a matter of fact, what caused her to use the elevator? Manifestly, under the allegations of the complaint and the testimony as well, it was the compulsion of her employment, an incident of her service. Had it not been that she was an employee of the defendant, occupying that relation and none other, she would not have been in the elevator. Her1 *63going into the elevator on the defendant’s premises was as much the act of an employee as entering the door of the office and taking her seat upon a chair provided for her nse. All alike are conveniences and appliances helpful in the operation of the general business of the defendant. It is not meet that we should make a better case for those who would profit by the death of the unfortunate girl than they have made for themselves on the pleadings.
It is argued that because the accident happened 10 minutes before the usual time for beginning her active duties the decedent was not an employee. It is said that, until she actually began her daily round as stenographer, her time was her own, so that she was not until then in the service of the defendant. This statement is not entirely borne out by the bill of exceptions. That document says that the testimony tended to prove “that Mabel Putnam, on September 2, 1910, at the time of the accident resulting in her death, was a stenographer in the employ of the defendant and receiving a salary of $35 per month.” She was employed by the month and not by the hour. Her status as employee or passenger is not determined by the stroke of the clock. It cannot be said reasonably that she was a passenger or employee according to whether she was early or late in arriving at the office where she worked.
A single authority, that of Thompson v. Northern Hotel Co., 256 Ill. 77 (99 N. E. 878), is quoted to sustain the contention that her time was her own at the moment of the accident, making her a passenger and not an employee. In that case the plaintiff was an employee of a hotel company in one of the ladies ’ toilet-rooms. Her duties required her to make several daily trips in the elevator of the hotel. She was injured by the negligence of the elevator boy in starting the elevator before she had time to enter the same. With*64out a single precedent cited to sustain the opinion, with two justices dissenting, the court in that case finally adopted the “department” theory of fellow-servant, and held that the plaintiff was not a fellow-servant of the elevator boy, ignoring the much better reasoning of the case by the same court in Walsh v. Cullen, 235 Ill. 91 (85 N. E. 223, 18 L. R. A. (N. S.) 911). In the latter case the decedent was a waitress in a hotel, and after her work was done had gone for a walk. Returning to her room she took the elevator and was injured by the negligence of the operator. Upon mature deliberation, on a second appeal of the case, the Supreme Court of Illinois held that she was a fellow-servant with the operator of the elevator, and on that account could not recover, although the injury occurred after the regular hours of her daily labor. The court said: “Her going out of the hotel for a walk was not inconsistent with the relation of master and servant existing between her and the defendant, and was in accordance with the ordinary and usual custom of house servants when not actually engaged in their duties. If a servant by going from her room to the street and returning again to her room creates a new and independent relation, an employer who would permit a servant to ride with him when not actually engaged in work would be transformed into a carrier of passengers, and a farmer who would carry his farm-hand to town after the work of the day was done would be engaged in the same business as a railroad company. The plaintiff was returning to her room for the purpose of resuming her work in the morning, and there was no evidence under which she could be held to bé a passenger by being in the elevator. We cannot approve the view of the trial court as to the law that if an employer permits a servant to go from her room to the street and back, a new relation arises with new obligations and duties, and the servant *65becomes freed from assumption of risk and all other obligations of a servant.” The opinion is well reasoned and well sustained by the authorities quoted. The .Circuit Court erred when it imposed upon the defendant that high degree of care, amounting well-nigh to insurance, required of a common carrier for its passengers, but not due to its employees.
Turning again to the complaint, we learn that the elevator “was, at the time, being operated by the regular elevator operator in the employ of the defendant. ” We discover, also, by its language, that “while in the act of passing out of said elevator as aforesaid, the said elevator operator so unskillfully, negligently, and carelessly manipulated, handled and operated said elevator that the same, suddenly and without warning to the said Mabel Putnam, began to descend very rapidly, and continued so to descend until it reached a point between the third and second floors of said building, and the said Mabel Putnam was thereby caught between said elevator and the floor of the third and the ceiling of the second floor, and greatly wounded, crushed and mangled, from the effects of which she immediately died; that the death of the said Mabel Putnam was caused by the descent of said elevator, as aforesaid, and by reason of the careless, negligent and unskillful manner in which the same was run, operated and manipulated by said elevator operator, and without any fault or negligence of the said Mabel Putnam. ’ ’
It is not charged that the elevator was in any way out of repair or unfit for the purpose for which it was designed; neither is it intimated in the complaint or elsewhere that the defendant was negligent in the selection and employment of the operator. The sole cause of complaint is the individual negligence of the operator himself. Construing the pleadings more strongly *66against the pleader, and presuming, as we must, that the defendant performed its duty in providing a safe elevator and in selecting a competent operator, the rule announced in Johnson v. Portland Stone Co., 40 Or. 436, 440 (67 Pac. 1013, 68 Pac. 425), applies to this case. There it is thus stated: “But when the master has provided for the servant a reasonably safe place in which to work, he is not responsible because it is afterward made dangerous by the carelessness or negligence of a coservant or employee, while in the discharge of duties pertaining to a mere operative, even though he be the superintendent or foreman in charge of the work. ’ ’ .
Following Mast v. Kern, 34 Or. 247 (54 Pac. 950, 75 Am. St. Rep. 580), Miller v. Southern Pac. Co., 20 Or. 285 (26 Pac. 70), and other precedents well established in this state, the decedent and the operator were clearly fellow-servants, being employed, under the control of, and paid by the same person, and engaged in the work of their principal. True enough, as stated in the illustration made by Mr. Chief Justice McBride, a stenographer employed by the Southern Pacific Company in San Francisco is not a fellow-servant engaged in the same common employment with the janitor of the office of the same company in Portland; but that is not this case. There the two employees have no opportunity to observe each other or to report or avoid each other’s delinquencies. Neither their goings and comings, nor the discharge of their duties, bring them into contact with each other, and the possibility of either of them affecting the other in any way is so. very remote that neither can be supposed to have contracted for employment with reference to it". It is a far cry from a great railway corporation whose operations span a continent to a little publishing house in an upper story whose employees are thrown together several times a day by the conditions of their service. Here, the decedent *67was employed in the same bnilding, in the same enterprise, nnder a common employer, and came in daily contact with the operator in going to and from her 'work. Entering the bnilding, using the elevator, and going thence into her office were incidents inseparable from her employment. She had almost constant opportunity to observe whether or not the operator was careless in the management of the elevator. It is not necessary to place her in the category of fellow-servant that she did not know the intricacies of the elevator’s machinery. The condition of the machinery is not involved in the pleadings, and the testimony shows that it was in perfect order except a blown-ont fuse, caused by the contact of the body of the deceased. It would require only common obsérvation to determine whether the operator was in the habit of running the elevator too rapidly, or being unable to stop it at the proper place, or of starting it either up or down without giving a reasonable opportunity to persons to leave the elevator or enter it. Any intelligent woman using the elevator at all would know that she was liable to be injured by the negligence of the operator, and must be presumed to have contracted with reference to and assumed the risk involved.
As to what is common employment so as to make out the relation of fellow-servant, the following precedents are cited in addition to those mentioned in the original opinion (130 Pac. 986). The rule is thus stated in Shearman & Redfield on Negligence (6 ed.), § 236. “Under the generally prevailing rule fellow-servants are engaged in a common employment when each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting their employment, that his negligence would probably expose them to the risk of injury.” This is quoted with approval in Kniceley v. West Virginia M. R. Co., 64 *68W. Va. 278 (61 S. E. 811, 17 L. R. A. (N. S.) 370), a ease where the plaintiff was injured while unloading lumber from a car, on account of the switching crew of the defendant running a train of cars against the one upon which the plaintiff was at work.
In Brush Electric L. & P. Co. v. Wells, 110 Ga. 192 (35 S. E. 365), a lineman in the employ of the defendant, in the performance of his duty, climbed one of the poles to repair or change the wires strung there. While he was thus engaged, an engineer in a distant power-house turned on the current, causing the death of the lineman. It was held that they were fellow-servants, although they were employed in different departments, and so far removed from each other that neither could in any degree control or influence the conduct of the other.
In Zilver v. Robert Graves Co., 106 App. Div. 582 (94 N. Y. Supp. 714), the plaintiff was a clerk in the office of the defendant, employed in stamping and directing mail. According to the complaint there, he left the office at night, having extinguished the lights, as he had been directed by another employee, and approached the elevator, the door of which had been negligently left open by the operator. The plaintiff fell down the shaft and received the injuries complained of, but the court held that the negligence of the operator was the negligence of a fellow-servant, entailing no liability upon the defendant.
In Fouquet v. Railroad Co., 53 Misc. Rep. 121 (103 N. Y. Supp. 1105), the plaintiff was an employee in the architectural office of the defendant in the building occupied by the latter for depot and office purposes The elevator operator was employed by the superin tendent of the building. The plaintiff- was injured by the management of the elevator due to the negligence of the operator. The court held that the plaintiff and operator were fellow-servants, and this case was *69affirmed on appeal (S. C., 123 App. Div. 804, 108 N. Y. Supp. 525). The court said: “An elevator is now considered an essential in an office building, indeed, in any high structure; and defendant, in providing elevator service, was but facilitating and expediting its business in making the various offices in the building easy of access to those of the general public having business in any of its offices, as well as to the employees therein employed, all of which having more or less directly to do with its general purpose, its railroad. * * It is true that the operation of the elevator here in question had in itself no bearing on or relation to the operation of trains or the work of the surveying and architectural offices of the defendant; but it had to do with making easy of access the various offices of the defendant by those having business relations with that ‘complex organism,’ the defendant’s railroad, and plaintiff has made no claim that the operator of the elevator was incompetent for the performance of his employment. That the employees of a common master are working at different trades, at various kinds of work, in different branches and departments, and whether in skilled or unskilled labor, does not change the rule as to the master’s nonliability to an employee for the negligence of coservants, if the master be himself free from concurring negligence” (citing numerous authorities). The court further says: “Here the elevator-man, in operating the elevator at the time of the injury to plaintiff, was performing the detail of the work of an employee, and was not the alter ego of the common master. He was not doing the master’s duty, and my conclusion is that he and the plaintiff were fellow-servants, and that the defendant is not liable to the plaintiff for the negligence of the operator. There is nothing in the contention that plaintiff, not having reached the particular office and room in which he put in his service or time, was not in the employment of *70the defendant. The place of his employment was the building, the Grand Central Station, and he was in the employ of the master from the time he reached the place of employment. He was employed and paid by the month, and at the time on his way to his particu-" lar room or office.”
To like effect is the case of Spees v. Boggs, 198 Pa. 112 (47 Atl. 875, 82 Am. St. Rep. 792, 52 L. R. A. 933). There the operator of the elevator in a dry-goods establishment was held to be a fellow-servant to a tailoress in another department of the same business, who habitually used the elevator in going to and from her place of work.
Another elevator ease is Miller v. Centralia P. & W. P. Co., 134 Wis. 316 (113 N. W. 954, 13 L. R. A. (N. S.) 742), where the plaintiff fell down an elevator shaft which was not .sufficiently lighted at that moment, owing to the fact that an electrician in charge of the electric lights, working in another department of the business, had turned them off. They were held to be fellow-servants, exonerating the defendant from liability in the absence of any allegation showing that it had not used ordinary diligence in providing a safe place in which to work, safe appliances, and the like.
In McAndrews v. Burns, 39 N. J. Law, 117, 119, the rule is thus stated: “Common employment is service of such kind that, in the exercise of ordinary sagacity, all who engage in it may be able to foresee, when accepting it, that through the negligence of fellow-servants it may probably expose them to injury. The ground on which rests the exemption of the master from liability to the servant for negligence of a fellow-servant, engaged in a common employment, is that the servant is presumed to contract in reference to the risk incurred. ’ ’
Again, in Donnelly v. Cudahy Packing Co., 68 Kan. 653 (75 Pac. 1017), the rule is thus stated: “Whenever *71coemployees, under the control of one master, are engaged in the discharge of duties directed to one common end, such duties being so closely related tliat each employee must know he is exposed to the risk of being injured by the negligence of another, they are fellow-servants, and each assumes the risk to which he .is thus exposed. ’ ’
To the same effect is Jock v. Columbia etc. R. Co., 53 Wash. 437 (102 Pac. 405), where the relation of fellow-servant was deduced by Mr. Justice Dunbar from the fact that the plaintiff had the opportunity to observe the manner in which the other employee of the defendant performed his duties.
Wilson v. Hudson River W. P. & P. Co., 71 Hun, 292 (24 N. Y. Supp. 1072), is a case where a laborer for a paper manufacturing company was killed by machinery set in motion by a chemist in the employ of the company. The court held them to be fellow-servants, and so exempted the employer from liability for the injury.
In Pawling v. Hoskins, 132 Pa. 617 (19 Atl. 301, 19 Am. St. Rep. 617), it was held that the engineer in charge of an engine which furnished the power for a stationery manufactory is a fellow-servant of the foreman of the composing-room of the same, and the latter cannot recover damages for an injury occasioned by the negligence of the engineer.
In Kitchen Bros. Hotel Co. v. Dixon, 71 Neb. 293 (98 N. W. 816), it was held that a bell boy in a hotel, a part of whose duties consists in showing guests to their rooms, using the elevator for that purpose, and the elevator boy in charge of the elevator, both being-employed and subject to the directions of the same master, are fellow-servants.
In Wolcott v. Studebaker (C. C.), 34 Fed. 12, the plaintiff was on his way to his work in an upper story of the defendant’s building, using the elevator installed in the building for that purpose. He was injured by *72the negligence of the engineer, furnishing the motive power for the elevator, and that of the elevator boy. It was held that they were fellow-servants; and this doctrine is borne out by a note appended to the end of the case.
In the case of Stringham v. Stewart, 27 Hun, 562 (100 N. T. 517, 3 N. E. 575, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483), an engineer running-an elevator in a farm warehouse was held to be a fellow-servant with the laborer injured by the negligent operation of that contrivance by tbe engineer.
In Mann v. O’ Sullivan, 126 Cal. 61 (58 Pac. 375, 77 Am. St. Rep. 149), the elevator-man and a carpenter engaged in inclosing the elevator shaft, who was injured by the negligence of the operator, were held to be fellow-servants. Among other things, the court there says, after stating the rule given by Shearman & Bedfield, Negligence (6 ed.), Section 236, as being as favorable to the servant as can be found in any standard wort: “Testing this case by the foregoing rule, the conclusion is irresistible that plaintiff, who was employed to repair the elevator shaft, and Carney, the man who was employed to operate the elevator, were servants of defendant, engaged in a common employment, or, as our statute has it, engaged ‘in the same general business.’ ”
In Schwind v. Floriston, 5 Cal. App. 197 (89 Pac. 1066), the plaintiff’s intestate was employed in a clerical department of a paper-mill. The company defendant had a switch from the main line of a railroad running to its mill, and owned cars which it operated on that switch in the prosecution of its business. Owing to mismanagement of the .cars by the man in charge of them, the decedent met his death while going on an errand for the defendant, and the court held that he was a fellow-servant with the man in charge of the *73cars, and exonerated the defendant from liability on that account.
In Railey v. Garbutt, 112 Ga. 288 (37 S. E. 360), the plaintiff was injured by mismanagement of a logging train on which he was riding to his work. It was held that he was the fellow-servant of the engineer, and could not recover from the defendant.
In Georgia Goal etc. Co. v. Bradford, 131 Ga. 289 (62 S. E. 193, 127 Am. St. Rep. 228), the plaintiff was a teamster engaged to assist in hauling a boiler from the defendant’s furnace to its coal mines some miles distant. He was injured by the negligence of the train crew in charge of some cars belonging to the defendant in the yard where he was about to engage in hauling the boiler. It was held that the plaintiff was a fellow-servant with the train crew, and could not recover.
In Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441), the plaintiff was an inside founder in a blast furnace belonging to the defendant. The court there held that the plaintiff was not out of the employ of the defendant so long as he remained on its premises, and that he was a fellow-servant with the engineer running cars to and from the furnace of the defendant, thus assuming the risk of the engineer’s negligence by which he was injured.
In Roland v. Tift, 131 Ga. 683 (63 S. E. 133, 20 L. R. A. (N. S.) 354), the woodcutter in the employ of a sawmill owner who operated a logging railroad was hurt by the negligence of the train crew while being carried to his work. Held, that he was a fellow-servant with the crew, and could not recover from the defendant.
In Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 384 (37 L. Ed. 772, 13 Sup. Ct. Rep. 914, 920), the court, speaking by Mr. Justice Brewer, says: “Prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow-ser*74vants, and some other line of demarcation than that of control must exist to destroy the relation of fellow-servants. All enter into the service of the same master, to further his interests in the one enterprise; each knows when entering- into that service that there is some risk of injury through the negligence of other employees, and that risk, which he knows exists, he assumes in entering into the employment. * # ‘ Having been engaged for the performance of specified services, he takes upon himself, the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this exemption is that he has, or, in law is supposed to have, them in contemplation when he engages in the service, and that his compensation is arranged accordingly. He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. ’ But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply coworkers with him in it. Each is, equally with the other, an ordinary risk of the employment. ’ ’
In Beutler v. Grand Trunk etc. Co., 224 U. S. 85 (56 L. Ed. 679, 32 Sup. Ct. Rep. 402), the plaintiff was an employee of-a railroad company engaged in work in the repair yard. A switching crew ran a car needing- repair from the general tracks into the repair yard, and by their negligence killed the decedent. The court, speaking by Mr. Justice Holmes, said: “No testimony can shake the obvious fact that the character of their respective occupations brought the people engaged in them into necessary and frequent contact, although they may have had no personal relations. Every time that a car was to be repaired it had to be switched into the repair yard. There is no room for the exception to the rule that exists where the negligence consists *75in the undisclosed failure to furnish a safe place to work in, an exception that perhaps has been pushed to an extreme in the effort to limit the rule.”
In McCarty v. Rood Hotel Co., 144 Mo. 397 (46 S. W. 172), an engineer in the employ of a hotel company was injured by the carelessness of the elevator boy in moving the elevator while the plaintiff was repairing the annunciator wires, and it was held that they were fellow-servants, exempting the defendant from liability.
Again, in Northern Pacific, R. R. Co. v. Hambly, 154 U. S. 349 (38 L. Ed. 1009, 14 Sup. Ct. Rep. 983), a laborer repairing a track was held to be a fellow-servant with the engineer and conductor of a passenger train by which the plaintiff was injured. The court there said: “As a laborer upon a railroad track, either in switching trains or repairing the track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such trains is a risk which may or should be contemplated by him in entering upon the service of the company. This is probably the most satisfactory test of liability. If the departments of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department, could not be said to be within the contemplation of the person injured, the doctrine of fellow-servant should not apply.”
In Norfolk & Western R. R. Co. v. Nuckols, 91 Va. 193 (21 S. E. 342), it is laid down that “a person entering the service of another assumes all risks naturally incident to that employment, including the danger of injury by the fault or negligence of a fellow-servant.” It is said there that “the liability does not depend upon the fact that the servant injured may be in a different department of the service from the wrongdoer. ’ ’
*76The exception to the general rule is made to depend upon the test of whether the departments are so far separated from each other as to exclude the probability of contact and of danger from the negligent performance of their duties by employees of the different departments. If they are so separated, then the servant is not to be deemed to have contracted with reference to the negligent performance of the duties of his fellow-servant in such other department: Seccombe v. Detroit Elec. Ry., 133 Mich. 177 (94 N. W. 747); Kenefick-Hammond Co. v. Rohr, 77 Ark. 290 (91 S. W. 179); Bier v. Jefferson, M. & I. R. R. Co., 132 Ind. 78 (31 N. E. 471); Railroad Co. v. Triplett, 54 Ark. 289 (15 S. W. 831, 16 S. W. 266, 11 L. R. A. 773); Quincy Min. Co. v. Kitts, 42 Mich. 34 (3 N. W. 240); Valtes v. Ohio & Mississippi Ry. Co., 85 Ill. 500; Chicago & Alton R. R. Co. v. Murphy, 53 Ill. 336 (5 Am. Rep. 48); Enright v. Oliver, 69 N. J. Law, 357 (55 Atl. 277, 101 Am. St. Rep. 710); Erjauschek v. Kramer, 141 App. Div. 545 (126 N. Y. Supp. 289); Jackson v. Norfolk & W. R. Co., 43 W. Va. 380 (27 S. E. 278, 31 S. E. 258, 46 L. R. A. 337).
In Labatt’s Master and Servant (2 ed.), ■ Sections 1420-1422, we find the learned author, after an exhaustive examination of precedents, summing up on this question in this manner: “We are manifestly conducted to the conclusion that in determining whether or not there was a common employment, as between two servants, the necessary and the only proper question to ask is whether or not their duties were so related that each of them must have known himself to be exposed to the risk of being injured in the event of the others committing a negligent act, and that this risk was so normal and so likely to eventuate in actual disaster that it was presumably considered by each of them in fixing the amount of the compensation which they were willing to receive for their services. It is *77important to note that, for the purposes of this rule, the nonanticipation of the servant is material only, in so far as it may be resolved into an excusable incapacity to forecast the probability of injury from the particular servant who was guilty of the negligent act in question. The mere fact that the negligent act itself was one which could not have been reasonably foreseen does not take the case out of the operation of the general rule. The principle laid down in the preceding section is accepted as the test of common employment by a large majority of the courts. One of its corollaries is that the plaintiff is precluded from recovery wherever the functions which he and the negligent coemployee were discharging, although not identical or even similar in character were yet such that the two servants were ‘contributing directly to the common object of their common employer’ in that enterprise for which their services were engaged. Or, to employ a terminology which is frequently found in the books, the injured servant’s right to recover does not depend upon the fact that he may have been in a different department of the service from the delinquent. * * In numerous instances a servant’s contemplation and inferential acceptance of the risk of his fellow-servant’s negligence are suggested by the fact that their duties, although diverse in kind, were obviously such that they might at any time be brought into close proximity to each other; and the authorities show that this circumstance is almost decisive against the plaintiff. But the essence of his disability to recover being his imputed comprehension of the likelihood of injury, it is evident that the remoteness of the place where the negligent servant habitually works is not necessarily a circumstance which negatives an assumption of the risk of his negligence.”
Worked out to its logical conclusion, the theory that the plaintiff can recover because her duties as stenog*78rapher bad no immediate connection' with tbe duties of tbe elevator-man would lead us to bold that she could not be injured by anyone in tbe defendant’s service except a fellow-stenographer without making tbe defendant liable. It would be only a step further to bold that if that fellow-stenographer for tbe moment assumed tbe duties of janitor for tbe purpose of put-, ting wood into tbe beating stove, and in so doing negligently' dropped a stick upon tbe plaintiff’s intestate and so injured her, a recovery could be bad against tbe employer for tbe resulting damage. To charge the defendant with liability under tbe circumstances of this case is to establish tbe department theory contrary to tbe doctrine laid down in Mast v. Kern, 34 Or. 247 (54 Pac. 950, 75 Am. St. Rep. 580), in which Mr. Justice Bean, reviewing that doctrine, says: “In short, tbe master is liable for tbe negligence of an employee who represents him in tbe discharge of bis personal duties toward bis servants. Beyond this be is liable only for his own personal negligence. iThis,’ as said by Judge Dillon, ‘is a plain, sound, safe and practical line of distinction. We know where to find it, and bow to de•fine it. It begins and ends with tbe personal duties of tbe master. Any attempt to refine, based upon tbe notion of “grades” in tbe service, or, what is much tbe same thing, distinct “departments” in tbe service (which departments frequently exist only in tbe imagination of tbe judges, and not in fact), will only breed tbe confusion of tbe Ohio and Kentucky experiments, whose courts have constructed a labyrinth in which tbe judges who made it seem to be able to “find no end in wandering mazes lost. ” ’ ”
When the plaintiff’s intestate went to obtain employment of tbe defendant she saw tbe situation. She knew that it involved tbe use of tbe elevator in question in going to and from her work. She knew that there was a possibility that tbe negligence of tbe eleva*79tor-man would injure her while using the elevator. She must be held to have contracted with reference to those elements of danger so apparent to any adult observing them. In brief, the decedent was present at the time of the accidént solely in her character as an employee of the defendant. She came within the scope of the defendant’s duty to furnish her a reasonably safe place of employment, necessarily including the means of access to the place. Until it is shown to have violated some duty in that behalf, either in providing an insufficient or dangerous elevator, or negligently employing an incompetent man or retaining him in its employment after it knew of his negligence, or incompetency, it has violated no duty to her. She was not a minor requiring gmsi-parental care from her employer, but was an intelligent adult, presumably possessed of ordinary powers of observation. She had as good opportunity as any officer of the company to observe the conduct of its other employee, the operator. She knew the situation and the means of going to her office as an incident of her employment, and she must-be presumed to have contracted with reference to the risk necessarily involved in the possible negligence of the operator. This is a basic reason of the rule about the negligence of fellow-servants as shown by all the authorities, and should control this case.
As said by Mr. Chief Justice Lord in State v. Clark, 9 Or. 466, 470: “Stare decisis is the policy of the courts, and the principle upon which rests the authority of judicial decisions as precedents in subsequent litigation, and this doctrine ought not to be departed from, except when subsequent examination shows the case to have been decided contrary to principle”: See, also, Multnomah Co. v. Silker, 10 Or. 65; Despain v. Crow, 14 Or. 404 (12 Pac. 806); Everding v. McGinn, 23 Or. 15 (35 Pac. 178).
*80Hence, however distressing the accident in the case at bar, we ought not to overturn the settled principles of the law and our own former opinions to favor the successors in interest of the deceased in this particular instance. For these reasons, I dissent from the conclusion reached by Mr. Chief Justice McBride on the two points first mentioned.
Mr. Justice Moore concurs in this dissenting opinion.