delivered the opinion of the court.
The learned counsel for appellant urge that the judgment should be reversed upon the following grounds :
1st. That the court erred in refusing to instruct the jury to find the defendant not guilty.
2d. The court erred in giving the third instruction for the plaintiff; and
3d. The court erred in refusing to propound to the jurv a certain special interrogatory, as requested by the defendant.
The ground first presented raises the question as to the sufficiency of the evidence to sustain the recovery. Three witnesses only testify to the occurrence which caused the injury. One, the conductor, testified to facts which, if true, would bar a recovery, for they would clearly establish contributory negligence upon the part of appellee as a cause of the injury. On the other hand, the testimony of appellee would, if credited, establish facts which ivould sustain the recovery. If he is to be believed, the employe of appellant, intrusted with the management of one of the cars of its passenger elevator, after he had opened the door of the elevator shaft upon the second floor where the car had stopped, without waiting to see if his passenger, appellee, was about to alight, and without even wholly closing the door of the shaft, started his car downward while appellee was in the act of alighting. These facts, together with the resulting injury to appellee, would warrant the conclusion of the jury that appellant, through the conduct of its agent, was guifiy of actionable negligence.
The testimony of the third witness is not satisfactory in clearness as corroborating either of the other two. From his testimony it might be inferred that no other person entered the elevator car at the second floor; and that the car was stationary when appellee started to leave it. But it is by inference only that his testimony goes to establish either fact. He states that he got upon the car and that there was no other person on the car except witness, appellee and the conductor. Whether he meant thereby to contradict the positive statement of appellee that another person did get upon the car as he attempted to leave it, or merely to give the passengers upon the car at the third floor, where he entered it, is problematical. Mor did the conductor expressly contradict the statement of appellee in this behalf.
From the testimony of Monroe it can not be definitely determined whether appellee is truthful in stating that the car had stopped when he started to leave it, er the conductor in stating that the car was moving downward. The question of the credibility of these witnesses was a matter for the determination of the jury, and we are not prepared to hold that the conclusion reached by them is manifestly against the weight of the evidence or lacking the support of a preponderance of it.
It is contended by counsel that the evidence establishes that appellee was guilty of negligence contributing to his injury, and therefore that he can not recover. We are of opinion that this too was for the jury and not for the court to determine npon the facts presented. It can not, we think, be held that as a matter of law the appellee’s conduct, if his testimony is credited, establishes contributory negligence. The fact that he did not request the conductor to stop for him upon the second floor, is not controlling. C. W. D. Ry. v. Mills, 105 Ill. 63.
In that case the Supreme Court said in reference to the management of a street car :
“ It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped, parties were getting off, and the plaintiff, while attempting also to do so, with due care, was injured by reason of the negligent starting of the car by the defendant’s servants. Éor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servant to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request • or obtaining any permission in that regard, and if the defendant’s servants knew, or by the exercise of due care would have known of it, it was negligence on their part to start the car before.she had a reasonable time in which to alight.”
Bor does the fact that appellee did not look particularly to see if the conductor was about to close the door necessarily constitute contributory negligence upon his part. Tousey v. Roberts, 114 N. Y. 312.
In that case the Hew York court said:
“The door to the car of the elevator being thrown open by a boy who had been accustomed to throw it open, it was not, as- a matter of law, contributory negligence in the plaintiff to pass through the door without stopping to look and listen. An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.”
But it is urged that the fact that appellee intended to go to the ground floor and by mistake undertook to alight at the second floor, supposing it to be the ground floor, constituted negligence upon his part which was a cause of, or contributed to the injury. This contention presents the question of the correctness of the instruction complained of by counsel for appellant.
We are of opinion that the instruction was proper. The question of contributory negligence of appellee went only to his exercise of ordinary care in the manner of getting off the elevator car, irrespective of any error upon his part in failing to wait until he had reached his destination, before alighting. If a person upon a public street of a city was injured through negligence of the city in maintaining the street, it could scarcely be presented as a bar to a recovery of damages for such negligence that he was by inadvertence upon a street other than the one he had intended to travel upon. We are of opinion that the learned trial court properly instructed the jury that the question of contributory negligence in this case related to the conduct of appellee in the manner of attempting to alight from the elevator car on the second floor, irrespective of his error in mistaking that floor for his destination.
It is also contended that the evidence is insufficient to sustain the verdict because no showing is made that it is a negligent act to start an elevator car away from a floor of a building before the door is closed to prevent persons from attempting to enter or leave the car.
The declaration charges and the evidence establishes that appellant was operating this elevator car as a carrier of passengers. The law imposed upon it the exercise of the highest degree of care and diligence for the safety of its passengers which. was practically consistent with the efficient use and operation of that mode of transportation. Hartford D. Co. v. Sollitt, 172 Ill. 222; Springer v. Ford, 189 Ill. 430.
It was for the jury to determine upon the facts of this case whether such care had been exercised, and this they could do without the aid of any expert testimony as to the usual conduct of elevator conductors in the matter of closing the doors of car or elevator shaft. If the jury were warranted in finding that the manner in which this conductor operated this car was negligent, then no evidence as to customary conduct of elevator conductors in general or convenience of management could affect the conclusion.
The refusal of the court to submit to the jury the interrogatory tendered was right. It not only called for an answer as to the ultimate fact of negligence of the defendant, but it also called upon the jury to formulate a statement of the evidentiary facts establishing that negligence. It should have been limited to the first question. The court properly refused it as framed. Judy v. Sterrett, 153 Ill. 94.
Ho other complaint is made as to matters of procedure, and there is no assignment of error argued which, questions the amount of the recovery.
The judgment is affirmed.