(dissenting).
The defendant, as owner, constructed a building designed for use as a warehouse or storehouse, which he equipped with a freight elevator. At one end of the elevator well was a wheel hole or opening in the floor, through which ran an endless cable over a movable pulley for the purpose of raising or lowering the elevator. Defendant did not place any fence, guard or protection around the elevator well or wheel hole. He rented the building in this condition to an express and.storage company, which used it for storage and warehouse purposes. It is fair to presume that the defendant knew that the express company intended to use it for such purposes, but the lease contains no stipulation as to what uses the building was to be put,— a fact, however, which is probably immaterial for present purposes. The lease contained no covenant that the defendant should make any changes or repairs in the building, which was in the exclusive possession and control of the lessee. The express company used the building as a warehouse, without placing any fences or guards around, or otherwise protecting, the elevator well and wheel hole; and as a consequence the plaintiff, one of its employees, was injured. The statute provides:
“All hoistways, hatchways, elevator wells and wheel-holes in factories, mills, workshops, storehouses, warerooms or stores shall be securely fenced, enclosed or otherwise protected.” Gr. S. 1894, § 2250.
It is clear that there was a failure to perform a statutory duty designed for the protection of employees and others lawfully employed in the warehouse. The question is upon whom was that duty im*172posed? or, to state the question in another form, is the defendant upon the facts stated liable for its nonperformance? It seems to me that there cannot be any doubt that, if common-law principles are to obtain, the defendant is not liable. The case would come squarely within the doctrine of Harpel v. Fall, 68 Minn. 520, 65 N. W. 913.
As respects the person upon whom the duty devolves, it can make no difference whether the duty is one imposed by statute or by common law, unless the statute imposing the duty itself changes the rule. Statutes are not to be presumed to alter the common law, further than they so declare, expressly or by clear implication. The statute gives no right of action against any one, except as that right is implied by the imposition of the duty. In the present case the statute imposes a duty, but is entirely silent as to whose the duty is. There is nothing in the language of the act implying or indicating an intention to change the common-law rule. The words, “factories,” “mills,” “workshops,” “storehouses,” etc., are not synonymous with buildings constructed and fitted for such purposes. They only become factories, mills, etc., within the meaning of the statute, when used. If a building be constructed and fitted for use as a factory, but is never so used, it would not be a “factory,” while, on the other hand, if it was not constructed for a factory, but was in fact used for that purpose, it would be a “factory,” within the meaning of the statute. Lee v. Smith, 42 Oh. St. 458.
The evident intention of the legislature was to protect employees and licensees in buildings, when used for the purposes specified. It is the use of the building, and not the mere design of the owner in constructing it, which creates the duty of protecting hatchways, elevator wells, etc. These suggestions are made for the purpose of showing that there is nothing in the statute indicating an intention to change the common-law rule of liability. The act being thus absolutely silent as to whose duty it is to guard elevator shafts, etc., the presumption must be that the legislature intended to leave that to be determined by the common-law rule. If it be asked what the statute, thus construed, accomplishes, the plain answer is that it imposes an absolute duty, the failure to perform which would be negligence in law or per se, whereas at common law it would be a *173question of fact, depending on circumstances, whether the omission to guard such places would or would not constitute negligence or want of reasonable care.
The statute is a wise police regulation, designed to protect human life and limb; and consequently courts ought not to adopt a strained construction that will impair its useful operation, but, on the other hand, they have no right by judicial legislation to extend its operations beyond what the legislature has enacted.
The only authorities relied on to support plaintiff’s contention are Parker v. Barnard, 135 Mass. 116, McLaughlin v. Armfield, 58 Hun, 376, 12 N. Y. Supp. 164, and House v. Metcalf, 27 Conn. 631. The first is not at all in point. It appears that in that case both the lessor and lessee were made parties defendant, but it nowhere appears what were the terms of the lease as to the respective duties of the lessor and lessee. The only question decided or considered in that case was whether the plaintiff, a police officer, who, finding the doors open in the nighttime, entered the building for the purpose of inspecting the premises,.in accordance with a rule of the police commissioners, was within the protection of the statute. The court carefully state that they had not considered the respective duties of the owners and of the occupants of the building as to the protection of the elevator well; that upon that inquiry the case was not before them.
McLaughlin v. Armfield is not the decision of the court of last resort. The opinion is very brief, cites no authorities, and gives no satisfactory reason for the conclusion arrived at. Moreover, the language of the statute there under consideration was, “any building occupied or built to be occupied as a manufactory,” etc.; and it might with some reason be urged that the words italicized showed a legislative intention to impose the duty on the owner, who constructed a building designed for use as a factory, without regard to who subsequently occupied it. House v. Metcalf, supra, was a case where the owner erected a public nuisance upon his premises and then rented them, with the nuisance still existing, which was maintained by the tenant. Under a very familiar rule of law the lessor, who erected the nuisance, equally with the tenant, was liable. Hence, in my opinion, the case is not at all in point.
*174There is still another and very strong reason why the construction for which I contend should obtain. The statute is penal; an omission to comply with any of its requirements or provisions being declared a misdemeanor, punishable by fine or imprisonment. Hence it should be strictly construed. If the defendant had been prosecuted criminally, I think that a court would hesitate a long time before placing upon the statute the construction adopted by the majority opinion. But it cannot be given one construction in a civil action, and another in a criminal prosecution.
Finally, if it be held that the common-law rule as to who is liable does not continue to apply, we are left all at sea where to draw the line; for the statute itself furnishes no guide. For these reasons, I think the order appealed from should be reversed.
CANTY, J. I concur with Justice MITCHELL.