The defendant was and is the owner of a general storage and warehouse building in the city of Duluth, which he built and equipped with a freight elevator, operated by water pressure for use therein. The elevator shaft was in the middle of the building, and extended from the basemént to the top story. To the north end of this shaft, and 8 or 9 inches distant therefrom, was a wheel hole or opening in the floor, 30 by 10 inches, through which was an endless wire cable, a part of the appliances of the elevator, that moved through a pulley two feet in diameter. As the elevator went up the pulley descended, and vice versa. It was entirely practicable to have a fence or guard around this wheel hole, pulley and cable without interfering with the operation of the elevator, but they were never so protected. There were no sides to the elevator. Such was the condition of the building and the elevator and its appliances on June 1, 1896, when the defendant and owner of the building leased it to the Duluth Van, Express & Storage Company for storage and warehouse purposes. On August 13, 1896, while the plaintiff was at work in the building for the lessee, he was injured by the unprotected pulley and cable, which passed through the wheel hole or opening in the floor. The accident happened on the third floor of the building. He had occasion to send the elevator down in response to a request from an employee on a lower floor, and for this purpose he went to the north side of the elevator and pulled the cable. In doing so he stood between the wheel hole and the elevator shaft with his back to the pulley and cable. As the elevator started down he started to walk out of the space between the hole and shaft, when the pulley came up and caught his coat, whereby he *166was carried to the ceiling and dropped to the door. He brought this action to recover for the injuries so received. Verdict for the plaintiff for $350, and the defendant appealed from an order denying his motion for a new trial.
1. The defendant claims that, as owner of the building, he is not liable to the employees of his lessee, while the latter is in possession thereof, for any injuries sustained by them by reason of any defects therein; that this case falls within the rule laid down in Harpel v. Fall, 63 Minn. 520, 65 N. W. 913.
It may be conceded, without so deciding, that such is the case, unless he is liable under the provisions of chapter 7, Laws 1893, entitled, “An act for the protection of employees.” 2 It is insisted by the plaintiff that this statute imposed a duty upon the defendant with reference to his building for the protection and benefit of persons rightfully therein, and, if they are injured by his neglect to discharge the duty, he is liable to them. There is no question that where the statute prohibits the doing of an act, or imposes a duty upon one for the protection of individuals, if he disobeys the prohibition or neglects to perform the duty, he is liable to those for whose protection the statute was enacted for any damages resulting proximately from such disobedience or neglect. Baxter v. Coughlin, supra, page 1. The question, then, is, does this statute impose upon the defendant any duty which he has neglected, so as to bring him within the rule stated, and render him liable to the plaintiff under the special facts of this case? Section 3 of the act cited (G. S. 1894, ” § 2250), so far as here material, is in these words:
“All hoistways, hatclrways, elevator wells and wheelholes in factories, mills, workshops, storehouses, warerooms or stores shall be securely fenced, enclosed or otherwise protected and due diligence shall be used to keep all such means of protection closed.”
Section 1 of the act (G. S. 1894, § 2248) also provides, among other matters, that all cables and dangerous places in and about factories, workshops, and public and private works, near to which an employee is obliged to pass, shall be fenced or otherwise protected.
No claim is made by the defendant that the wheel hole, pulley and *167cable in question are not required by the statute to be guarded, but his claim is that the duty is only imposed upon those in possession of the building, operating its appliances and machinery, and having employees; that nothing is said in the statute as to who should discharge the duty imposed, and, it being a continuous duty, it is reasonable to infer that the statute refers only to parties in possession or control of the building, either as owner or lessee. There is force in the suggestion. It is not, however, necessary in this case to decide whether the continuous duty rests upon the owner of the building of seeing that the appliances, fixtures and permanent machinery of his building are properly protected or guarded as required by the statute, after he has parted with the possession thereof to the lessee.
The question arising upon the facts of this case is whether the owner of the building, who, while the building is in his possession, neglects to comply with the statute, as to dangerous appliances which it is practicable to guard and which are a part of the building itself, who turns it over to his lessee with no fence or guard about such appliances, is liable to an employee of the lessee, who is injured by reason of the fact that no guard was ever placed around them by either the owner or the lessee.
The purpose of the statute is plain. It was intended to guard human life and protect human bodies from being mangled. It is a police regulation founded upon sound public policy, and courts ought not to strain or restrict by construction its language so as to impair its useful operation. It should be construed so as to effectuate the wise and humane purposes of its enactment. While the statute does not impose the duty of guarding such appliances upon the owner by name, its terms being positive and sweeping that such appliances shall be so guarded, yet there is no reason why the owner of a building should not be required to comply with the statute, as to such dangerous appliances as are a part of his building, before he delivers the possession of the building to his lessee; and we so hold. The duty, in the first instance, rests upon the owner to construct - guards about such appliances, even if it should be held_that the con-, tinuous duty rests upon the lessee to keep them guarded while they "are in his exclusive possession and control, ..
Statutes of other states, somewhat similar to our own, have been *168construed as applicable to the owner, although the duty was not specifically imposed upon him. Thus, a Massachusetts statute (section 5, c. 260, St. 1872) provided in general terms, without placing the duty upon any one in particular, that in any building in Boston, in which there should be placed any hoisting elevator or wellhole, it should be protected by a railing. A police officer, who entered such a building in the discharge of his duty and fell through an unguarded elevator well, brought an action against both the owners and occupants of the building for his injuries so sustained. The trial court found for the defendants. The case was reversed on appeal, the supreme court holding that the defendants were liable under the statute. The court, however, did not consider the respective duties of the owners and occupants. Parker v. Barnard, 135 Mass. 116.
A New York statute3 declared in general terms that any building occupied, or built to be occupied, as a manufactory should be provided with a fire escape. This statute was considered in the case of McLaughlin v. Armfield, 58 Hun, 376, 12 N. Y. Supp. 164, which was an action by an employee of the occupant of a building built to be occupied as a factory against the owner thereof, on account of his neglect to equip the building with a fire escape, whereby the plaintiff was injured. The defendant claimed that because the statute did not, in terms, impose the duty upon the owners of such building, it could not be placed upon them by a judicial construction of the law. The court, however, held that the initial duty rested upon the owner, and held him liable.
In the case at bar the wheel hole included in the term “the pulley and cable” was a part of the building itself, a necessary part of the elevator, and there was no reason why the defendant should not have complied with the statute before parting with the possession of the building to his lessee. The initial duty rested upon him to guard the wheel hole as required by law. He could not evade the duty by leasing the building. House v. Metcalf, 27 Conn. 631.
2. The defendant further claims that the evidence conclusively shows that the plaintiff was guilty of contributory negligence. *169Negligence is rarely a question of law. This case, however, is a border one. The narrow place between the wheel hole and the elevator shaft, upon which the plaintiff stood when he pulled the cable to send the elevator down, was a dangerous place. There was a nearer cable which he might have used, and a safe and convenient place to stand upon. Had he known this fact, and appreciated the danger of standing where he did stand in order to reach the cable he did use, there would be but little doubt that the question of his negligence was one of law and that he could not recover. But he had been employed in the building only three days when the accident happened, and there is evidence tending to show that he was ignorant of the safest way to handle the elevator; that he had received no instructions in the premises, except that he was told that the cable that he used was the one that controlled the movements of the elevator; and that he did not appreciate the danger to which he exposed himself in starting the elevator from the place selected by him. Upon the whole evidence the question of the plaintiff’s contributory negligence and whether he was within the scope of his employment when injured was one of fact for the jury. The evidence justifies the verdict in his favor upon those issues.
3. The defendant also claims that the trial court erred in receiving testimony over his objections tending to show that it was the custom in the warehouse in question that, if the elevator was wanted on another floor than the one at which it was standing, the employees wanting it would call to the man on the floor where the elevator was, who would send it up or down, as the case might be. This evidence was competent upon the question of the plaintiff’s negligence and whether he was in the line of his employment when injured. Sather v. Ness, 42 Minn. 379, 44 N. W. 128. It was not error to admit evidence as to the cost of putting a guard around the wheel hole. It had a tendency to show that it was feasible to guard the hole, pulley and cable. The point is also made by defendant that the plaintiff’s injury was the result of the negligence of his fellow servant who directed him to send down the elevator, — a matter he did not understand. The proximate cause of the plaintiff’s injury was the failure to guard the wheel hole, and, even if the negligence of a fellow servant combined with that of the defendant to *170produce the injury, it does not defeat a.recovery. Franklin v. Winona, 37 Minn. 409, 34 N. W. 898.
The defendant assigns as errors that the court erred in modifying his fourth, fifth and seventh requests for instruction. All of the fourth was given, to which the court added a further instruction of its own which in no manner modified the request as given. The fifth was not a correct statement of the law. It was to the effect that the burden was upon the plaintiff to establish all of the issues, including the absence of contributory negligence, by a preponderance of evidence. The court, instead of refusing the request, as it might have done, modified it so as to except the absence of contributory negligence from the issues which the plaintiff must establish by a preponderance of evidence. The language of the modification was, possibly, not happily chosen; but, taken in connection with all that the court said upon the question of contributory negligence and the burden of proof, it was sufficiently clear and explicit. It was not error to give it as modified. The seventh request was properly modified.
The evidence in this case left the question whether the plaintiff was negligent in not asking instructions as to the handling of the elevator one of fact, not of law.
Order affirmed.
G. S. 1894, §§ 2248-2264.
Laws 1888, c. 583, tit. 14, § 16 (p. 1028).