dissenting:
This action was brought to recover damages for the death. *90of Albert R. Sakers, alleged to have been caused January 7, 1891, by the negligence of the defendant. Sakers was a youth of nineteen years, industrious, faithful, conscientious and intelligent. He had been for a year in the employ of one Brown, who carried on business in the Center Market. Brown was tenant to the defendant.
The defendant controlled and operated in the market house an elevator used for the purpose of carrying the tenants and their employees from floor to floor in the building. In the course of their business they were customarily so carried. When the elevator boy was absent from his post, which frequently happened, the tenants and their employees were accustomed to operate the elevator themselves. Some of them were warned against the practice, but it did not appear that any warning was ever given to Sakers, or that it was ever brought to his knowledge.
The door of the elevator shaft was operated automatically by the ascent and descent of the car. When the car ascended, the door was lowered and closed, and when it descended, the door was raised and opened. This was accomplished by means of a rope which was attached to the top of the car, and to the top of the door, and passed over pulleys in the upper part of the elevator shaft. The rise and fall of the door was six fe.et, and there was a slack in the rope when the door rested upon the floor. In taking-up this slack by the descent of the car, the weight of the door was lifted with a jerk which caused a strain upon the fastenings of the rope. This fastening at the top of the car was slight, and flimsy in character; it was frayed and loosened by the constant jerking; it gave way two weeks before the accident causing the door to fall, and one week before the accident the fastening was found to be disengaged when it was secured by a piece of common string.
On the day of the accident Sakers had occasion to use the elevator on the ^business of his employer. Not finding the elevator boy at his post, he entered the car alone, went to *91the upper floor, performed his errand, and brought the car to the starting point in safety. The door being then open, and the car all the way down, he started to step out, the elevator car started up, and the door began to descend. He was struck on the head by the door, which fell all the way to the floor. To extricate Sakers, it was necessary to break away the door; which done, revealed the car standing at an elevation of four feet only, Sakers lying on its floor with his head crushed, his hand upon the operating rope, and some sweet breads lying beside him. Death followed in a few minutes after the body was removed. Although the door had fallen six feet, the car had ascended but four feet. In the ordinary operation of the elevator, but a second of time was sufficient for the car to ascend two feet and the door to descend the same distance, thus closing an aperture of four feet between the floor of the car and the bottom of the door.
There were stairs leading to the upper floor of the market house, but some testimony tended to show that the door to those stairs was closed.
There are inconsistencies and contradictions in the testimony given in the record with reference to the rate of speed at which the door descended before and after it struck the deceased, and to the position of the car when he attempted to alight, which but emphasize the uncertainty of the evidence tending to show negligence or want of care on the part of Sakers, and their rehearsal is unnecessary.
I concur with the justices whose views are expressed in the opinion of the court in their conclusion that the testimony is such with reference to the negligence of the defendant as to require the submission of that question to the jury. But I am unable to agree with them that the testimony is so clear, or conclusive, as to the negligence of the deceased contributing to the injury, that the trial court had the right to direct a verdict for the defendant upon that ground.
The question appears to me to be sufficiently interesting *92and important to justify the statement of the reasons for my dissent.
The deceased was not a trespasser; he was rightfully in the elevator. It was provided for the use of tenants and their employees. His employer was a tenant, and he was engaged in the business of his employer. He had a right to be carried. The elevator boy was absent; the door was open; there was no notice posted forbidding the operation of the machine by others than the elevator boy; he had not been warned not to operate it, and he followed the practice known by the defendant to exist when he operated it himself.
In Chicago, See., Ry. Co. v. Lowell, 151 U. S. 209, it appeared that the plaintiff, a passenger, reaching his station, disregarded a notice conspicuously posted at the end of the car directing passengers to alight on the other side, and alighted upon the ground next to other tracks, in attempting to cross over which he was injured. There was a platform at the other side of the car, alighting upon which the plaintiff would have avoided the injury. 'He was a daily passenger upon the road, but had never read the notice. The notice was habitually disregarded by the passengers. The collector of his ticket saw him get off, and said nothing.
The trial court was asked to direct a verdict for the defendant because of the plaintiff’s negligence, and its refusal •was assigned as error.
The court said: “The defendant should not be allowed to rely exclusively upon a breach of its regulation. In this particular the case resembles that of the Dublin, etc., Ry. Co. v. Slattery, 3 App. Cases, 1155, in which the House of Lords held that a notice not to cross the tracks which the compan3r had permitted to fall into desuetude, and made no attempt to enforce, did not debar the plaintiff who had disregarded it from a recovery. . . . Proof that the plaintiff violated the regulations of the company, even without the excuse of a cogent necessity, will not as a matter of law debar him from recovery.”
*93There was reason to claim in the case at bar, that the deceased, under the circumstances in evidence, operated the machine at the invitation of the defendant. If that question were important it was the province of the jury to determine it.
The question was apparently unimportant, however, for whether the deceased operated the machine upon the implied permission' or invitation of the defendant or without it, he assumed all the risks that were incident to his act, and no recovery could be had for any injury of which the operation of the elevator was wholly or in part the proximate cause. He was an intelligent boy of nineteen years, capable of appreciating the ordinary danger attending the handling of the machine. But in either case, if the injury were occasioned solely by defective construction of the machine or by unsafe appliances — in other words, by the negligence of the defendant — rthe right of recovery would exist.
Does the testimony show such a state of facts, that all reasonable men must draw from them the inference that the deceased was wanting in care, and that such want of care was a proximate cause of the injury? Unless it does, the question of the negligence of the deceased should have been submitted to the jury. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 417; Gardner v. Michigan Central R., 150 U. S. 349, 361; Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, 368.
1. It is not enough to say that if he had not been in the elevator he would not have received the hurt.
If the fall of the door were due solely to the negligence of the defendant, and that were the proximate cause of the injury, then the act of the deceased in putting himself in the car, considering it to have been improper conduct, could not be regarded- as any part of the cause of the injury. Such preceding negligence, if it could be properly so termed, would be a mere condition, and not a contributing cause. Washington v. B. & O. R., 17 W. Va. 190; Thirteenth & F Sts. Pass. R. v. Boudran, 92 Pa. St. 475; Scheffer v. Railroad Co., 105 U. S. 249.
*94In the last case cited, the declaration alleged that the plaintiff’s testator was injured in a collision caused by the carelessness of the defendant; that such injury was about the head and spine, occasioned a disordered brain, and finally after several months of suffering, induced the sufferer to take his own life. The defendant was sued under a Virginia statute giving the right of recovery for death caused by negligence. The declaration was demurred to, and the demurrer sustained. In affirming the judgment, Justice Miller, citing Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, and McDonald v. Snelling, 14 Allen, 290, said: ■“ The proximate cause of the death of Scheffer was his own act of self-destruction. It was within the rule of both of these cases a new cause, and a sufficient cause of death.”
The same justice, in a previous decision, had stated the doctrine of a remote and proximate cause in these words: ■“If a new force or power has intervened of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.” Insurance Co. v. Tweed, 7 Wall. 52.
In his admirable treatise upon the law of Torts, Mr. Pollock states the proposition thus: “He (the plaintiff) is not to lose his remedy because he has been negligent at some stage of the business, though without that negligence the subsequent events might not, or could not, have happened; but only if he has been negligent in the final stage, and at the decisive point of the event so that the mischief as and when it happened is approximately due to his own want of care.” Pollock, Torts, 375.
The deceased successfully operated the machine in its entire trip until it reached the floor upon its return. Was he negligent at that point either in its operation, or in his effort to alight from the car?
2. When the elevator was all the way down, he started to get out, and at the same time it began to ascend. If his act caused the car to move upward, and that movement contributed to the event, his want of care was in part the prox*95imate cause of his injury, and the plaintiff was not entitled to recover. The only evidence upon that point was the fact that the car ascended, that it stopped at an elevation of four feet, and that the deceased was found with his hand upon the rope by which the elevator was operated. It must be remembered that the burden of proving that the deceased exercised due care did not rest upon the plaintiff. For aught that appears, the car may have ascended from some defect in the machinery after the deceased had exercised all necessary care in stopping it, and without any interference by him with the operating rope. It does not clearly appear that he caused it to start upward, and the plaintiff in making out his case was not called upon to prove that it did not. Whether he did or not, was a question for the jury to determine by such inferences as they could legitimately draw from the circumstances in evidence. The inferences to be drawn were not so certain and incontrovertible, as to justify the court in deciding, as matter of law, that he caused the upward movement of the car by his own act.
3. How was it with reference to the attempt to alight? Notwithstanding the inconsistencies and contradictions in the testimony, it is stated that when the car was all the way down, he started to get out, and as he leaned forward the car began to rise, and the door to descend. He was struck upon the head by the descending door, while in that attitude, in the act of alighting. It required but a second of time for the car to ascend twro feet, and the door to descend the same distance, thus reducing the space between the floor of the car and the bottom of the door to two feet. In that second, and in that emergency, if it were possible for him to step back and save himself, he was required to determine which course he would pursue, and to act. It may have been impossible for him to retreat out of the way of the descending door before he was struck. The testimony does not show that it was possible. He may not have pursued the best possible course under the circumstances, but the *96assumption that he acted recklessly and rashly is not warranted by the statement of the evidence.
The question of the exercise of due care in sudden emergencies, by a person called upon to act under peculiar circumstances, should be always submitted to a jury. A party so situated , is not held to the exercise of the same degree of caution that would be expected under ordinary circumstances, and the inferences to be drawn from this act are not uniform or certain. Kane v. Northern Central Ry., 128 U. S. 91; Union Pacific R. Co. v. McDonald, 152 U. S. 262.
In the first case cited a brakeman in the employ of the defendant was injured by falling from' a freight car while in the act of letting himself down upon a step which a few hours before he had noticed was off, but which fact he overlooked in the hurry of going to his post in sleet, rain and cold. The trial court directed a verdict for the defendant on the ground of plaintiff’s negligence. Upon' error to the Supreme Court of the United States, Justice Harlan, delivering the opinion of the court, said: “ In determining whether an employee has recklessly exposed himself to peril or failed to exercise the care for his personal safety that might be reasonably expected, regard must always be had to the exigencies of his position; indeed, to all the circumstances of the particular occasion.” And after reviewing the testimony he concluded: “We are of opinion that the court erred in not submitting to the jury to determine whether the plaintiff, in forgetting or not recalling at the precise moment the fact that the car from which he attempted to let himself down was the one from which this step was missing, was in the exercise of the degree of care and caution which was incumbent upon a mail of ordinary prudence in the same calling and under the circumstances in which he was placed.”
In the second case the same doctrine was announced, where the circumstances were that a lad of 12 years, in broad day light, frightened by other lads, ran along a path *97and fell into a burning slack heap, which was in plain view beside the path.
Inasmuch as the testimony tending to show negligence of the defendant in the insecurity of the door attachments, and that the fall of the door was a proximate cause of the injury to the deceased, was sufficient to go to the jury, and as I am of opinion that the testimony tending to show want of due care on the part of the deceased which co-operated with the defendant’s negligence in producing the injury as a proximate cause, was not sufficiently clear for the court to determine as matter of law that the plaintiff could not recover, the judgment ought to be reversed, and a new trial directed.