(dissenting). This case has been disposed of by my Associates upon the theory of the relation between the parties of master and servant. We therefore start with plaintiff as a servant in the house of defendant. The mere fact that she had not before been called upon to ascend the rear stairs to the fourth floor does not affect the question as to the nature or scope of her duties. That she was performing her duties as a servant in the house *312is the theory upon which the declaration is cast, and upon which my Associates have based their opinion. Accepting, therefore, the position assumed, plaintiff and Hugh were fellow servants.
The negligence of defendant is predicated upon the hypothesis that the dumb-waiter shaft was defectively constructed. There is a marked distinction between a factory or public building and a private dwelling house. In factories the duties of the employes are ordinarily confined to a particular part of the premises, and the building must be constructed for the protection of employés instructed to go into portions thereof with which they are not familiar. The same rule applies to public buildings, to which the public has more or less unrestrained access! They must be constructed and maintained with a view to the accommodation and safety of the members of the public, who usually have no knowledge of the existing conditions. On the other hand, a private dwelling house is constructed to suit the convenience of the owner or lessee. Elevators in charge of skilled operators' and open and commodious stairways are an impossibility in ordinary construction. Stairways descending from open hallways and blind stairways accessible from doors leading from rooms or hallways are common— indeed, ordinary — features of construction. A private dwelling is not constructed with any view whatever to public convenience, and the public, as such, has no rights in the premises. Invited guests have access only to such parts of the house as are set apart for their use, and usually act under the escort or direction of some member of the household. Servants are members of the household, and it is their first duty to acquaint themselves with the house and any peculiarities pertaining to its construction.
As the degree of care required of the owner of a private dwelling is less than that required of the owner of a factory or public building, so the care required of a domestic servant is greater than that required of an employé in a factory or public building. Ordinarily the duties of the domestic servant are coextensive with the house itself. They extend, or may extend, to, any or all parts of the house, both by day and by night. Hence the servant will be presumed to observe and understand all the peculiarities of construction in the house to the same degree as a prudent person of equal age and experience, with equal capacity for estimating their significance, under the same circumstances, would observe and understand them.
Before contributory negligence, as matter of law, can exist, it must consist of such an act as not only contributes to, but is the proximate cause of, the accident. It is not difficult to locate the proximate cause of the accident in this case. It consisted in the carelessness of plaintiff in opening the door and stepping into the shaft under conditions uncalled for- from the nature of her mission. It is stated in the opinion that there is no evidence tending to show that plaintiff knew tire location of the dumb-waiter in the fourth floor. She was familiar with its location and operation on the third floor, and must have known that it ascended and descended past that floor ^ that the shaft did not extend horizontally or at an angle, but vertically; and that it must, of necessity, occupy the same relation to the stairway on the fourth floor *313as it did to the stairway on the third floor. It is also stated in the opinion that the record fails to disclose that plaintiff knew the dumbwaiter shaft extended to the fourth floor; but, on the other hand, it also fails to show that, she bad any reason to believe that it did not so extend, and she had no right to assume that it terminated at the third floor. Her knowledge of its existence at least should have suggested to her the probability of its continuation to the fourth floor, a fact which she was required to take into consideration and guard, herself against when groping in the dark.
Nor can it be held that she was justified in assuming that, if the shaft did extend to the 'fourth floor, it was protected by a gate. True, a gate blocked the entrance to the shaft on the third floor; but she knew that this was for the protection of the children, and that none existed on the first and second floors. The existence, however, of a gate on the third floor and plaintiff’s knowledge of it, has no bearing upon the question of her negligence. If she bad gone to the fourth i'oor to use the dumb-waiter, and, relying upon a gate, had opened the door and fallen in, the existence of the gate on the third floor might have been important. But her mission to the fourth floor had nothing to do with the dumb-waiter. Whatever case plaintiff has must rest upon the hypothesis that when she opened the door she did not know she was entering the shaft; hence she was not relying upon the presence of a gate from her knowledge that there was one on the floor below.
Not only did the darkness call for the utmost care on her part, but there is no contention on the part of plaintiff, nor is there any evidence to support the assumption, that her orders from defendant, given the broadest possible interpretation, required her to open and pass through a door. It is upon this erroneous assumption that plaintiff’s action in opening the door into the shaft is excused by my Associates. The opinion assumes that she thought she was opening the door into Hugh’s room. Either this theory must be correct, or else she did something not contemplated in her mission — opening and passing through a door. But this presumption, upon which the opinion rests, that she mistook the shaft door for the door to Hugh’s room, has absolutely no basis in fact. Nowhere in her testimony does she make any statement from which even a remote inference may be drawn, that she had any intention of opening Hugh’s door, or any other door, or that her mission required it. She testified that she was calling Hugh, and the evidence dearly discloses that this was what she was requested by defendant to do. If she felt it her duty to go to Hugh’s room in order to arouse him, propriety would seem to suggest, considering the hour of the night, lhat she do so by rapping on the door, instead of unceremoniously entering the room as she entered the shaft.
Twice in the opinion it is stated erroneously that the door was ajar. While plaintiff used the expression in her testimony, she evidently meant that it was not latched. Plaintiff testified:
“As I was feeling: for Hie light, * * * niy hand came on a door handle. 3 Believe it was a knob, but am not sure. I did not have to turn the latrli. It was ajar. I pulled it like that (illustrating), and it came quite easily, and I stepped forward.”
*314The trial justice, who witnessed the illustration of plaintiff on the witness stand, stated to the jury in his charge:
“If the door was locked, the plaintiff cannot recover; if it was not, in fact, locked, but stood ajar, or stood as the plaintiff testified, so that upon a mere taking hold of the knob the door came open, then in so far as that point is concerned it is the case she has stated in the declaration.”
In the declaration plaintiff alleges:
“Her hand came into contact with a doorknob upon a door standing slightly ajar, or only lightly fastened; she opened the door, taking one step forward,” etc.
Plaintiff alleges she opened the door before stepping in. She so stated on the witness stand; the court so stated to the jury; the case was tried on that hypothesis in the court below, and in the briefs and arguments of counsel in this court. Therefore the most that can be fairly adduced from the record is that the door was closed, but not latched.
Thus we have the case stated in the most favorable light for plaintiff ; that she was sent into the back part of the hall to call Hugh, not to blunder around in the dark, or to open doors and enter unknown chambers, closets, or dumb-waiter shafts. No clearer case of deliberate, reckless, heedless, contributory negligence was ever presented to a court.
But was the shaft, in fact, defective construction in a private dwelling? Certainly not, if the door is kept closed and locked. Let us assume, to meet the theory of negligence advanced by the court in this case, that a gate had been provided inside the door. Then, whether the door is locked, merely closed, unlatched, or open, the gate furnished absolute protection — approved construction. But suppose a servant, in disobedience of the master’s express instruction, removes the gate, and neglects to restore it, and another servant comes along in the dark, unfamiliar with conditions, opens the door, steps in, and is injured. What becomes of the theory of defective construction? In that case the gate, when in place, furnished a perfect barrier. In the present case the door, when kept locked, as required by the master, formed a complete barrier. In both cases the dangerous condition was due, not to this or that style of construction, but to the •negligence of the fellow servant.
This is not the case of a dangerous contrivance left unguarded. Plaintiff did not stumble or fall into an open shaft. The door was closed. To make the situation dangerous, she was required to do an affirmative act — open the door; an act not contemplated in the order of defendant, or even remotely related to the mission upon which she had been sent. The request of defendant certainly .did not contemplate the entry of plaintiff into Hugh’s sleeping apartment at the midnight hour.
It therefore logically follows that, so long as the door to the shaft was closed, a perfectly safe place was afforded plaintiff in which to perform her mission. Until she opened the door, the hall was safe. The duty of the master to furnish a safe place only requires that it be *315safe for the performance by the servant of the particular duty assigned. Each case must rest upon its own facts. We are without authority, as a court, to judicially legislate upon the general subject of dwelling house architecture in the District of Columbia, with the view of preventing every possible accident which might occur as the result of this or that particular style of construction.
Counsel for plaintiff in their brief suggest that no case has been found analogous to this. The reason is apparent. They might have gone further, and truthfully stated that no case has been found where a servant in a private house has attempted to recover damages for injuries sustained from alleged defects in construction. Servants in private houses from time immemorial have been falling down stairs, through hatchways, and over obstacles left by the negligence of fellow servants; but no one prior to this, owing to the peculiar relation, seems to have conceived the notion that such an action for damages would lie.
The door is the usual instrument for inclosing passageways in private dwellings, and, whether locked, latched, or unlatched, it is notice to all to use their senses in opening it and passing through. And this is the rule of the cases. In Steger v. Immen, 157 Mich 494, 122 N. W. 104, 24 L. R. A. (N. S.) 246, the accident occurred in an apartment building, a collection of private dwellings, where a guest in one of the apartments was furnished a key to the toilet. He mistook the location of the toilet, opened a door, as in this case, stepped into a dumbwaiter shaft, and was injured. No question of defective construction seems to have been involved in the case. At least, it was regarded as unworthy of consideration by the court. The plaintiff was held to be guilty of contributory negligence as matter of law. In that case plaintiff was given a key and sent on a mission which required the opening of a door, while plaintiff’s mission did not. If, in these cases, the negligence of the defendants is traceable to defective construction, the plaintiff in the Michigan case' had a much stronger case than the plaintiff in the present case, since his mission required him to open and pass through a door in a semi-public building.
In Gaffney v. Brown, 150 Mass. 479, 23 N. E. 233, the plaintiff was accustomed to get her dinners at a house, on the ground floor of which the dining room was conducted. She came there as a boarder. When she started to leave the dining room, she went to a door which she assumed was the exit door. She opened the door, stepped in, and was precipitated down a stairway to the cellar. It was held to be contributory negligence as matter of law.
In Clark v. Fehlhaber, 106 Va. 803, 56 S. E. 817, 13 L. R. A. (N. S.) 442, the plaintiff, a dressmaker, was summoned to the house of defendant. She entered the rear vestibule, and, not knowing which one of several doors to enter, knocked on one of them, and defendant called to come in. Plaintiff opened the door, entered, and fell down a fight of stairs into the cellar. The court held that the accident was merely the result of misapprehension on the part of both parties. Plaintiff thought she was knocking on the entrance door, and defendant thought she was knocking on the right door. Both innocently con*316tributed to the accident, and there could be no recovery. There was no intimation of defective construction.
In Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580, plaintiff went to a house in which his son-in-law lived as a tenant. Late in the afternoon he went to a water-closet, which opened on the hall on the first floor, not knowing its exact location. By the reflection of a dim light he saw a door slightly open, and, supposing it to be the right door, stepped in upon a -platform, from which he fell into a cellar, breaking his leg. Disposing of the case, the court, in part, said:
•‘We cannot see there was any obligation on the part of the defendant to keep the hallway lighted, or to keep the cellar door locked, at the peril of becoming responsible for an accident such as has happened in this case. We are of the opinion that the evidence fails to disclose the lack of reasonable care on the defendant’s part in the attention given to these doors or to the lighting of the hallway. * * * Again, on the plaintiff’s part, he was clearly guilty of negligence contributing to the injury. He says it was dark, and after he got Hold of the door in question it was so dark he could not see into the space in front of him. He had never been there before, and he had no information which might mislead him, or cause him to think there was but one, and that the door into the closet. He knew nothing about it, and in that state of ignorance he opens a door which he thought was the one leading to the closet; but, it being dark, he could not be certain, and, notwithstanding the darkness, he walks ahead, and, while supposing himself in the closet, steps to the head of the stairway, and falls down the cellar stairs. In such case, and in the darkness, he should not have proceeded in a perfectly strange place without a light, or in some way taking precautions which would have enabled him to proceed in safety, * * and hence, if one do come to a door in a hallway under such circumstances as this case shows, he cannot walk through it in darkness and claim damages for the resulting injury.”
Other cases may be cited where persons, through mistake, have fallen into private stairways, hatches, or shafts. Campbell v. Abbott, 176 Mass. 246, 57 N. E. 462; Massey v. Seller, 45 Or. 267, 77 Pac. 397; Kaiser v. Hirth, 46 How. Prac. (N. Y.) 161. In no case has defective construction been intimated as ground of negligence. These cases sufficiently emphasize the distinction between private and public places, and answer the cases cited by the court where the accident occurred through mistaking the wrong doorways leading into and about public buildings. The cases relied upon in the opinion of the. court all relate to accidents in public huildings. In all but one case the injured party was a stranger to the premises, and in each instance the mission of the injured party directly contemplated passage through a door.
In the present case plaintiff, though a servant in the house, was not a slave. She was not compelled to obey the indefinite request of defendant. She could have refused to ascend the stairs until they were lighted. She must have known of the custom that the light was kept burning until the last servant retired. She saw the servants ascending anff descending the stairs. She was constantly around and about the foot of the stairs, and was familiar with conditions. Defendant also had a right to assume that the light was on, since the house throughout was lighted, indicating that the servants had not all retired.
Some responsibility must be attached to plaintiff’s plunging into the dark without knowing the conditions ahead. But, as I have süggested, *317the way was safe for her mission. It required an affirmative act on her part, not related to her mission, to create the danger.
The motion for a directed verdict should have been sustained.