On Rehearing.
Niciiolls, C. J.In defendant’s brief counsel say:
“Can the obligation and duty of the defendant be better stated than has been done by Judge Cooley, in Cooley on Torts, Second Edition, page 768 ei seq.f Paraphrasing we say: “IUs duty and his undertaking to his passengers go to this extent that, as far as hum'an foresight and care can reasonably go, he will transport them safely. lie is not liable for injuries' happening from sheer accident or misfortune where there is no negligence or fault, or where no want of caution, foresight, or judgment would prevent the injury.”
“If it be kept in mind that ‘proof of a breach of duty is essential to a recovery ini an action for negligence,’ the doctrines stated by or inferred from the opinion 'of the court in Motchell vs. Marker, 62 Fed. Rep. 139, will serve for precedent here.”
“The plaintiff relies on that case. We take him at his word and we find that ease decides:”
“1. That elevators are not insurers of the safety of passengers.”
“2. That the highest degree of care is required of such owners.”
“3. That this care includes the control and management of the apparatus as well as the apparatus itself.”
“4. That it is the duty of the operative ‘to see that all his passen- “ gers are on and to give them sufficient time to adjust themselves.’ ” “These four propositions, it is clear, properly state the law. The three first are general rules, applying always, everywhere, to elevator owners as such. The fourth proposition attempted to be applied calls for facts. It raises the question, ‘did the one operating the elevator give the passengers reasonable 'opportunity to obtain balance upon entering the car, before beginning the flight upward ?’ ”
*439“If this question be answered in the affirmative, the plaintiff’s case falls. What other answer can possibly be given upon the facts established here ?” .
“It is indisputable that the plaintiff and his brother-in-law, two healthy and vigorous looking, stocky built, fellows, apparently about thirty-five years of age, enter the elevator in the usual way, take their places about the center of the car — the messenger boy is in one corner, the operator is between them and the door. The operator closes the shaft door, looks to see if he is due to start upward, pulls his power rope as usual, turns to take the instructions of his passengers and finds one of them fallen on the floor and the accident has happened. Neither of the other passengers is jarred or startled or loses his equilibrium.”
“Where is a breach of duty shown by these facts?”
The granting, by this court, of a rehearing evidenced the fact that we were not thoroughly satisfied as to the correctness of the conclusions reached by us and announced in the original opinion rendered. We have had the benefit, a second time, of argument, and the record has been submitted for re-examination after counsel of each side had called our attention to everything that could be said in favor of their respective clients.
Opinion.
There were four persons in the elevator at the time of the accident, John Bernard, the elevator operator, James Devine, a messenger boy, Santo Russo, the party injured, and Alexander Siacca, his brother-in-law.
The plaintiff is very consistent and positive in his statement as to how the accident occurred. -He testified that he entered the elevator with his right foot; that he then carried forward his left foot, hut before he could place it securely upon the floor, the operator pulled the rope and the elevator moved upward so suddenly and with such rapidity as to throw him off his balance and throw his arm and shoulder against the side of the wall; that the flooring of the second story extended beyond the wall itself so as to almost reach outwardly the floor of the elevator; that his shoulder and arm being carried swiftly upward along the wall finally reached the projecting floor above, and striking the same with great violence, were at once .crushed. It is true that he was not very precise in his description of the elevator and its surroundings *440or exact as to how he was injured, but it was not to be expected that he should be thoroughly informed on those points, under the circumstances.
Divine, the messenger boy, testified that the elevator started off and went up fast; it went so fast that the man went right off his feet, and when he hit the second floor> the elevator boy stopped and brought the man down; that he did not know what it was that made Russo fall over, but it looked like the elevator went so fast that it made him fall over; it started fast and quick. It started with a jerk and went fast.
On cross-examination he stated that the elevator did not start that day differently from what it did usually; that it seemed to him that this was the first time that this man was in an elevator. As soon as the elevator started, he went down “like that;” the elevator went so quick. He testified further that neither he himself, nor the operator, nor the other man, Siacca, who was with Russo, fell or staggered. He does not seem to have noticed or known whether Russo had or had not placed his feet to the floor of the elevator when it started.
Siacca, the brother-in-law of Russo, preceded him in the elevator, and was unable to-make any statement as to whether the latter had yet planted his left foot io the floor when the elevator started. He did state that, a moment after they got into the elevator, Russo’s arm was caught; “that the elevator started as fast as possible; almost as fast as lightning.”
Bernard, the elevator operator, stated that there were four elevators in the Iiennen Building, operated side by side facing Common street; that the elevator in which the accident occurred was elevator No. 4— that nearest Carondelet street. The rule for operating these elevators, with reference to each other, was that the doors should be closed before starting; that the elevators were not supposed to go up all at once, or go down all at once; they were supposed to be divided betweeti three or four floors. That the signal to start was sometimes given by a “starter;” that on this particular occasion the starter was not present; that he ascertained the time to start from the relative positions of the elevators; that he always looked up to see if the other elevators were at the right place; that he looked first, shut the door, and then pulled the rope. The witness referred to Russo’s position in the elevator as being behind him, but he does not pretend to deny Russo’s statement, that when the elevator started he had not yet planted his second foot upon the floor of the elevator; it is evident he had not noticed his'situation specially as to this.
*441ITis version of the starting of the elevator was that he looked up to see the elevators coming down; that he closed the door as usual and started to pull the rope; that as he pulled the rope he looked around to see where the passengers were going, and he saw the stout man (Russo) fall and he immediately stopped the elevator and saw the stout man with his arm crushed between the ceiling of the second floor and the floor of the elevator; that he started the elevator that day as he usually did, with ordinary passengers. In another portion of his testimony he stated that “he was standing in the elevator at his place and two men and a boy came in the elevator; the two men stood behind and the boy opposite to him (the elevator man); that he loolced to see if it ivas time to start and as it was time to stai-t he closed the door and started the elevator and looked around to enquire where the passengers were going, what floors, and he saw thé stout man fall and he immediately stopped the elevator, and he saw the man with his arm crushed at the ceiling of the second floor between the flooring of the elevator and the ceiling.”
A comparison of the testimony of the different witnesses, satisfies us that Russo’s statement that the elevator was started before he was permitted to place himself securely on his feet, is correct; that the elevator operator took as his guide, in starting it, the relative positions of the elevators themselves, rather than the situation and the condition of the passengers, who had entered his own elevator.
Defendant insists, however, that even if the elevator was started before Russo had both feet planted on the floor, it was impossible for the operator to have started it so suddenly, and with such swiftness, as to have thrown him off his balance. It says this matter is controlled by the engineer and is beyond that of the operator. That matters are so arranged that it is impossible for the elevator to be moved beyond a certain degree of swiftness, one hundred and fifty feet a minute, and an attempt to have it move faster would result in its being locked. That may be, and doubtless is true, but none the less the rate of speed at which the elevators are made to start, and ai’e made to run, after starting up, to and within this maxim speed, is at the will of the operator.
Florence, defendant’s engineer, being questioned on this subject, stated that the elevator boy could not regulate the speed, past the (maximum) excess, at full speed. That that was the limit 'of the elevator man’s power; he might open the valve half way and crawl, but at full speed he can go no faster. Being asked “will the elevator start *442with that speed regulation or that speed maximum when it starts, will it start with a jerk or start easily and safely?” lie replied: “From a standstill to that velocity, it is not an easy gradual motion, but it starts right off at full speed.” , ,
On cross-examination he was asked: “Supposing the rope was pulled so as to open the valve only partially, what is the slowest speed at which the boy might operate it ?” To this he answered: “lie might take all day to go to the eleventh story; the minimum might be brought down so that it would take him all day to go from the ground floor to the eleventh. If the elevator man opens the valve at starting, at full speed, it starts at the rate of one hundred and fifty feet a minute.”
The operator himself confirms the statement. In answer to a question by one of the jurors as to whether it was possible for him to regulate the speed of the elevator by the rope, that is, to make it go faster or slower, he replied: “Well, if I see any one in a dangerous condition, like old people or women, I could pull the rope slowly or easily and that would cause the elevator to go slow.” The regulation of the elevator is by pulling the rope and letting it go; he could control the speed of the elevator by the rope; if he pulled the elevator rope a certain distance lightly, it will go gradually; by giving one pull it would send it as fast as it would go; he could make the elevator go slower or faster by pulling easy, by not opening the valve to its full extent, but if he pulled the valve open to its full extent it goes as fast as it can. On this’ particular occasion, when he first started the elevator, he pulled the rope so as to open the valve to its full extent.
The case before us is that of a passenger in an elevator, who was unquestionably injured before reaching his destination, while being conveyed by a common carrier company. The plaintiff had a verdict in his favor in the lower court, which 'was approved by the district judge. Both sides produced their evidence. A thorough re-examination of the record satisfies us we would not be justified in saying that there was error in the verdict and in the judgment of the court, and unless we be able to so declare, we should not set aside the verdict and reverse the judgment.
We are of the opinion that the judgment heretofore rendered by us in this case should be, and it is hereby set aside, and it is -now ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.
Monroe, T., recuses himself having decided this case in the court of first instance.