delivered the opinion of the court.
It is claimed by appellant, in substance, first, that the court erred in not directing a verdict for defendant at the close of the plaintiff’s case, and also at the close of all the evidence; second, that the jury was erroneously instructed; and, third, that the verdict is against the clear weight of the evidence- and is excessive.
It is said that as under the declaration defendant is charged with having negligently constructed and maintained its elevator cage, and as there is no evidence to prove the negligent original construction of the elevator cage, the plaintiff’s case must fail for that reason. We think this contention is not tenable, and that it is sufficient to allow the plaintiff to recover under this allegation if he proved that the defendant negligently maintained the cage.
The majority of the court (not including the writer) is of opinion that the evidence, the substance of which has been recited in the statement preceding this opinion, is insufficient to show any negligence of the appellant, as alleged in the declaration; that an elevator cage constructed and maintained as it is shown the one in question was made, is reasonably safe for the carrying of passengers therein; that the fact that the grill or scroll work extending around the cage of the elevator at the height of about three and one-half feet from the floor had small openings in it of sufficient size to allow the thumb or finger of a person to be put through such openings so as to come in contact with the wall of the elevator well, and the further fact that the wall of the elevator well was only from a half inch to an .inch from the outside of the back of the cage, did not make it negligent for the defendant to operate the elevator in the carrying of passengers under these circumstances; and that as to whether or not there was negligence in the defendant’s operating the elevator under such circumstances, is a question upon'which there could be but one conclusion by reasonable, intelligent and fair-minded persons, viz., that it was not negligence.
It is now the settled law in this State that the liability of a person or corporation operating a passenger elevator to passengers rightfully riding thereon, as was the case with the plaintiff, is the same as that of common carriers by steam railways. Hartford Dep. Co. v. Sollitt, 172 Ill. 225; Field v. French, 80 Ill. App. 78; Hodges v. Percival, 132 Ill. 53; C. & A. R. R. Co. v. Arnol, 144 Ill. 272; C. & A. R. R. Co. v. Byrum, 153 Ill. 135.
In the Sollitt case, supra, the Supreme Court say:
“ Persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those operating elevators for raising and lowering persons from one floor to another in buildings. It is a duty of such carrier of passengers to use extraordinary care in and about the operation of such elevators so as to prevent injury to persons therein.”
In the Field case, supra, this court said, in speaking of the liability of the carrier of passengers by elevator:
“ The rule is that the carrier must exercise the highest degree of human care, vigilance and foresight which is reasonable under the circumstances, and in view of the character of the mode of conveyance adopted, reasonably to guard against accidents.”
In the Arnold case, supra, the Supreme Court in speaking of the liability of the carriers of passengers by a steam railway, say :
“ Ordinarily carriers of passengers for hire, while not insurers of absolute safe carriage, are held to the exercise of the highest degree of care, skill and diligence, practically consistent with tne efficient use and operation of the mode of transportation adopted.”
In the Byrum case, supra, the Supreme Court in passing upon the liability of a railway company to its passengers, held that an instruction which contained the following language stated the law correctly, viz.:
“ Common carriers of persons are required to do all that human care, vigilance and foresight can reasonably do, consistently with the character and mode of conveyance adopted and the practicable prosecution of the business, to prevent accidents to passengers riding upon their trains.”
And in the same case the court also approved as the law the following- language in an instruction which, after stating the duty of the carrier substantially as above, said :
“ While the carrier is not an insurer for the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger, and is responsible for the slightest neglect resulting in injury to the passenger.”
The instruction further providing that the passenger should be in the exercise of ordinary care. The court also held that this duty of the carrier “ applies alike to the safe and proper construction and equipment of the road.”
In view of the law as held by these decisions, the majority of the court, not including the writer, is of opinion that it is not reasonable that appellant should, at the peril of being found negligent toward persons riding in its elevator, be required to construct the back and ends of its elevator with solid wood, glass or metal, so that passengers would thereby be safe from the danger or risk to which plaintiff wras exposed by the open spaces in the iron grill or scroll-work of its elevator. In other words, that to so hold would make appellant an insurer of its passengers against accident.
The writer can not give his assent to this ruling, and is of opinion that, under the evidence, whether or not appellant was guilty of negligence, was a question of fact for the jury, as to which intelligent,-reasonable and fair-minded persons might reasonably reach different conclusions. The duty of the carrier in such a case is to use “ the highest degree of care, skill and diligence practically consistent with the efficient use and operation of the mode of transportation adopted.”
Also, that duty requires that the carrier should “ do all that human care, vigilance and foresight can reasonably do,” consistent with the mode of conveyance and the practical prosecution of the business to prevent accidents, and is “responsible for the slightest neglect” which results in injury to a passenger. Can it be said appellant has used the highest degree of care consistent with the practical operation of its business reasonably to guard its passengers ? Can it be said that if all had been done that human foresight could reasonably have suggested, the practical operation of appellant’s elevator being considered, the holes in this scroll-work should not have been closed ? Can it be said that appellant has not been guilty of the slightest neglect in operating its elevator with this open scroll-work % Can it be said that it would be unreasonable to require that appellant’s elevator should have been constructed without any holes through the back and ends ? The writer thinks these were all matters for the consideration of the jury, in the first instance, and that a verdict that appellant was negligent - as charged, can not be said to' be manifestly against the evidence.
As to the question of appellee’s care to avoid injury, the evidence was sufficient to justify its submission to the jury; but we are of opinion that the clear preponderance of the evidence is that plaintiff did not exercise ordinary care for his own safety. .The plaintiff himself, as appears from the statement preceding this" opinion, is not clear as to how his thumb came to be inserted through the grill-work so as to be injured. A reasonable conclusion from his evidence is, that he raised his hand involuntarily when the elevator started, to brace himself, and, in so doing, passed his thumb through a hole in the grill-work; or, that he carelessly and thoughtlessly, without thinking about the liability to danger, put his thumb through the hole; or, that he was misled by the distance of the window-glass from the outside of the cage, and playfully inserted his thumb through' the grill-work in the belief that he incurred no danger.
As against the evidence of appellee,, the witness Wicker-sham testified positively that he warned appellee of the danger, seeing him, as the witness says he did, insert his fingers through the oval in the grill-work. This evidence is corroborated by the conductor, who said that he heard Wiclcersham say something to the boy about the time the elevator was ready to start, but did not hear what it was. The doctor also testified that the boy said to him, immediately after the accident, “ There was no one to blame except himself.” It is true, the boy contradicts the evidence of both the doctor and Wickersham, but in view of the uncertainty in the boy’s evidence, we are of opinion that it is clearly overcome in "this respect by the evidence for appellant.
The fifth instruction given for plaintiff is clearly misleading, if not erroneous, because it allows the jury to assess, in plaintiff’s favor, all damages, present or future, which, from the evidence, appear to be the necessary and direct result of the injury. This would include damages for loss of time while plaintiff could not work, and any loss which might result from his inability to earn as much as he could have earned but for the injury, for the period between the time of the injury (when he was fifteen years old) and his majority. Either of these items of damage could be recovered in a suit by the father, and for that reason they were not proper elements for the jury to consider in a suit by the plaintiff in his own behalf. The instruction, had the suit been by an adult, would have been entirely proper.
Other criticisms are made as to other óf ajipellee’s instructions and as to the modification and giving as modified of "two of defendant’s instructions, but we are of opinion that there was no error in any of these respects. The two of defendant’s instructions, as asked, tell "the jury that certain acts of the plaintiff, if believed from the evidence, would preclude his recovery, or, in other words, that such acts showed a want of ordinary care. This was error. I. C. R. R. Co. v. Griffin, 184 Ill. 9.
The instructions were so modified as to leave to the jury the question as to whether or not the "facts specified in the instructions showed negligence on the part of the plaintiff, and the giving of the instructions so modified was not error.
In view of the conclusion reached by the majority of the court,- it is unnecessary to consider the other questions argued.
The judgment is reversed.