(dissenting). I cannot concur in the majority opinion
in this case. Defendant’s covenant did not, in my opinion, make him an insurer of the safety at all times of the elevator. He was liable *503only for failure to exercise proper care in keeping the elevator in repair. If plaintiff had exclusive possession of the elevator, defendant would not, under the authorities, be liable until after he was notified of the necessity for repairs. But plaintiff did not have possession at all. On the contrary, defendant had possession, and it was the latter’s duty to use reasonable care and diligence to discover the want of repair. This the evidence tends to prove he did not do. There is evidence to sustain a finding that defendant was guilty of negligence which caused or contributed to the injury for which plaintiff was compelled to pay damages, and defendant is therefore liable over to plaintiff, unless the latter is guilty of contributory negligence. In my opinion, the plaintiff’s foreman was guilty of negligence which contributed to the injury; and, on the doctrine of respondeat superior, plaintiff is responsible for this negligence. The trial court found:
“A bolt in the arm in the top of said elevator cage, through an opening in which the steel cable used in starting and stopping the elevator passed, was lost out, so that said arm, when said elevator reached the fourth floor, would not come against the button fastened to said steel cable, but would allow the same to creep about twelve inches above said floor. * * That nlaintiff’s factory in said building was under the charge of Mr. Shotwell, who was the manager of said factory on behalf of the plaintiff, and, as such manager, had charge of all the operations carried on by plaintiff in said factory, and of all the workmen employed therein. That said Shotwell, for several days prior to the injury suffered by Lyman, had notice that said arm was out of repair as above stated.”
The further findings of the court show conclusively that this arm, being out of' repair as above described, was one of the concurring causes resulting in the fall of the elevator and the injury of Lyman. As regards the matter in question, Shotwell was as much the representative of plaintiff as it was possible for him to be, and therefore notice to him was notice to plaintiff. He not only had notice that the bolt had' fallen out of the arm, but notice “that said arm was out of repair as above .stated,” which includes notice that the arm would not stop the elevator at the proper place, “but would allow the same to creep about twelve inches above said floor.” It is true that the court finds that the defective condition of this arm would not have caused the elevator to fall, were it not for the defective condition of the guide strips, which were too short to reach as high as the elevator might ascend when the automatic stop did not act. But this is merely find*504ing that the defective condition of the arm and the defective condition of the guide strips each contributed to cause the fall and the injury. If plaintiff (through Shotwell) was guilty of negligence which contributed to the injury, it is no excuse to say that, as respects other parts of the appliance (to wit, the guide strips), defendant was guilty of negligence which also contributed to the injury.
Again, it does not appear that Shotwell knew that the guide strips were too short, and that the guides would get off the guide strips by reason of the defective condition of the arm, and thereby cause the elevator to fall. But Shotwell had good reason to know, and must be held to have known, that the defective condition of this arm made it dangerous, and was likely to result in some kind of an accident. That he did not know and could not anticipate the particular accident which occurred, makes no difference. The rule of Hadley v. Baxendale, 9 Exch. 341, does not apply to such cases. While as between plaintiff and his servant, Lyman, it was plaintiff’s duty to use at all times proper care to inspect and repair the appliances furnished the servant in the performance of his duties, and plaintiff could not delegate this duty to defendant, yet, as between plaintiff and defendant, it was not plaintiff’s duty to inspect or repair the appliances in question, but it was defendant’s duty to do both. Therefore, if, by reason of the failure of plaintiff to use proper care in inspecting and repairing this elevator, his servant was injured, and he was compelled to pay the servant damages therefor, defendant would be answerable over to plaintiff for what he paid. Because what was plaintiff’s duty, as between him and his servant, was defendant’s duty, as between him and plaintiff.
But this is not the question here. Here the plaintiff is charged with something more than a failure to inspect and discover, the defect in question. He already had notice of that defect, and, notwithstanding such notice that the elevator was dangerous, he permitted his servant to use it for several days, and this resulted in the injury in question. He was, as between himself and defendant, guilty of negligence in permitting the elevator to be used after he had notice that it was in a dangerous condition, and this negligence contributed to the injury. For this reason, plaintiff is not entitled to recover. The oral evidence and admissions of the parties on the trial prove conclusively the facts found by the court, on which this result is reached.
However, respondent contends that this defendant, having received *505notice to defend the action brought by Lyman against this plaintiff, is bound by the result of that action. The proceedings in that action were introduced in evidence in this, and show that one of the issues presented the same state of facts as the oral evidence and admissions above referred to, viz. that this plaintiff (through Shotwell) had notice that the elevator arm was out of repair, and would not perform its function of automatically stopping the elevator. Under this issue, the evidence that plaintiff (through Shotwell) was negligent in failing, after receiving such notice, to prohibit the use of the elevator by his servants, would have • sustained a verdict in Lyman’s favor in that case. For this negligence this defendant was not responsible or answerable over to this plaintiff, and therefore the result of that action is not conclusive between the parties to this action.
The order appealed from should be reversed.
MITCHELL, J.I fully agree with Justice CANTY as to the legal principles applicable to this case, but am not able to concur in the construction which he places upon the finding of the trial court, as amounting to a finding that Shotwell was guilty of negligence. It is true that, according to the findings, the absence of the bolt in the arm in the top of the elevator, of which Shotwell had notice, was one of the concurring causes of the fall of the elevator. But it does not necessarily follow that Shotwell was negligent in allowing the elevator to be used in that condition. The court finds that, but for the defective condition of the guide strips, of which Shotwell had no notice, the absence of this bolt would not have caused the elevator to fall. ‘It is no doubt true that if Shotwell knew, or ought, in the exercise of reasonable care, to have known, that the elevator was dangerous and liable to result in injury to those using it, then he was guilty of contributory negligence, although he had no reason to anticipate the particular accident which did occur. But there is no finding that the mere absence of this bolt rendered the elevator unsafe, or that Shot-well had any reason to suppose it did. The finding is merely to the effect that he knew “that said arm was out of repair as above stated.” Even if this implies that he also knew that this would allow the elevator “to creep about 12 inches above said floor,” this does not amount to a finding, either express or implied, that he was guilty of any negligence in permitting it to be used in that condition. Plaintiff’s con-*506tributary negligence, personal or imputed, was an affirmative defense, tbe burden of proving which was on the defendant.'
For these reasons I concur in the result arrived at in the opinion of the court affirming the order appealed from.