such injury would have occurred. Hence the defendant is responsible only for the want of ordinary and reasonable care.

We find no testimony which would justify a finding that the decedent's injury resulted from starting the elevator with a jerk or jolt. The evidence is to the contrary, and shows conclusively that the elevator was so constructed that it was impossible that it could have been thus started. Therefore that allegation of the complaint was entirely unproved. Moreover, the record shows that the elevator was in the charge of a young man of experience, and in all respects competent. It was of modern construction, properly built and equipped, and in good order in every respect. It was also proved that doors to elevator cars were not ordinarily used, and that but few had either seats or railings in the car. It is contended that the bars or grates which formed part of the elevator shaft were insufficient in size, and not properly fastened. While this accident may have disclosed that fact, yet the undisputed testimony was that, in fireproof buildings of the character of the defendant's that was the customary manner of inclosing elevator shafts. There was also evidence that it was only in cheaper buildings, or those that were not fireproof, that brick shafts or wire netting were used, and that the latter would have been no more effective to prevent this accident than the means employed. No proof that any similar accident had ever before occurred was offered, although such elevators had been in use for years. We think there was no evidence which would have warranted the trial court in submitting to the jury the question of the defendant's negligence in thus protecting the opening in the shaft, as there was nothing to show that the defendant could have anticipated or foreseen any such result from using a grating of that kind. Nor do we think the defendant could be held liable for the reason that there was no door to the car of the elevator, as suggested by the learned judge who wrote the opinion in the court below; for, as we have already seen, the proof was that doors were not ordinarily used. But the learned general term also suggested that negligence might be based upon the rapidity with which the car was started without giving to the decedent instructions how to protect herself. That there was no negligence in the manner of starting the elevator, we have already seen. Just what instructions the learned general term deemed necessary to be given is not stated, and it is somewhat difficult to understand what they should have been. Nor are we aware of any principle which required the defendant to give the decedent any instructions whatever. There was no proof upon the trial that any instructions to passengers, whether infants or adults, were usual or necessary. At the time the decedent was 9 1-2 years of age,-a bright healthy, active girl, who assisted her mother at home, and sometimes went on errands for her in the city. If it be said that

she was non sui juris, and consequently unusual attentions or instructions should have been given her, the answer is that she was not of such tender years that it could be held, as a matter of law, she was non sui juris. But, if unable to properly care for herself under the circumstances, the burden of establishing that fact was upon the plaintiff. Stone v. Railroad Co., 115 N. Y. 104, 21 N. E. Rep. 712; Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. Rep. 916. No such proof was given.

After a careful examination of the evidence, we are unable to discover any proof which would have justified the trial court in submitting the question of the defendant's negligence to the jury. Negligence is not to be presumed, but must be proved, and, before a plaintiff is entitled to recover, he must establish an omission to discharge some duty which the defendant owed him. We find nothing in this case to show that the defendant failed to perform any duty which it owed to the plaintiff's intestate. The elevator, the car, the shaft, and all the machinery employed in its operation, were of the usual kind, in complete order, and properly operated by a servant who was in all respects competent. Under these circumstances, we think the trial court properly nonsuited the plaintiff, and that the general term erred in reversing the judgment entered thereon. For that error the judgment appealed from should be reversed, and the judgment entered upon the decision of the trial term should be affirmed. The judgment of the general term should be reversed, and that of the trial term affirmed, with costs. All concur. Judgment reversed.

NOTE. It is the duty of the owners of elevators to make them reasonably safe for the uses to which they are to be put, and in so doing they are bound to exercise that degree of care employed by reasonably prudent men in attaining the same end. And the fact that an elevator and its appliances were the same as are ordinarily used, does not establish, as a matter of law, that proper diligence was used in making them reasonably safe. Lee v. Knapp & Co., 55 Mo. App. 390. The fact that no other person in plaintiff's business had used a railing in front of an elevator does not conclusively establish that it was not negligence to fail to provide such a railing. McCormick Har vesting Mach. Co. v. Burandt, 136 Ill. 170, 26 N. E. Rep. 588. A carrier of passengers by elevator is not an insurer, but is required to exercise the highest degree of care, as in the case of a carrier by railroad; and such care is not restricted to the vehicle and machinery, but includes the control and management of the means of transportation. Mitchell v. Marker (Cir. Ct. of App., 6th Cir.), 62 Fed. Rep. 139. See same case 54 Fed. Rep. 637. Those in charge of an elevator used to carry passengers are bound to exercise the highest degree of skill and care to secure their safety which is ordinarily used by prudent persons in conducting the same business. Kentucky Hotel Co. v. Camp, 30 S. W. Rep. 1010, 17 Ky. L. Rep. 297. The obligation of those operating a passenger elevator to passengers or those attempting to become passengers is the same as that of common carriers, and they must use and exercise the highest degree of care and precaution.

Southern Building & L. Assn. v. Lawson, 97 Tenn. 367, 37 S. W. Rep. 86. The owner of a hotel in which an elevator is used for the accommodation of guests, is bound to exercise at least ordinary care and prudence to inspect and repair the elevator, and to so operate it as to carry guests in safety; and where he takes charge of a building in which the elevator has been built fourteen years, and has been unused for nearly a year, and has the elevator inspected only in the ordinary and usual manner of inspecting ele vators, he is liable to a paying guest who is injured by reason of defects in the elevator that could have been discovered and remedied by overhauling the elevator machinery. Stott v. Churchill, 36 N. Y. Supp. 476, 15 Misc. Rep. 80, 71 N. Y. S. R. 441. Where a workman employed by a contractor to put a refrigerator plant into a hotel building, made an arrangement with the person employed to operate the elevator that he should be permitted to get upon the top of the elevator and use it as a scaffold while at work, the owner of the building, who had no knowledge of this arrangement, is not liable for injuries inflicted upon the workman by the elevator man starting the elevator without giving him notice, as the elevator man had no authority to agree that the elevator should be used for that purpose. Jossaers v. Walker, 43 N. Y. Supp. 891. Where the employees of a safe moving company undertook to use the elevator to move a heavy safe to the top floor of a building for a tenant, and the elevator, not being properly secured by appliances to keep it in position, as the weight of the safe was taken from it, sprang up through no defect in the elevator, and lifted the back part of the safe so that it tipped over upon one of the safe company's employees and caused his death, the owner of the building is not liable for such death. Murphy v. Hayes, 145 N. Y. 370, 40 N. E. Rep. 6, 64 N. Y. S. R. 824, affirming 68 Hun, 450, 23 N. Y. Supp. 70, and 26 N. Y. Supp. 1116. Failure to comply with a city ordinance requiring elevators to be built and protected in a certain way, does not render the owner of the elevator liable to a civil action by a person who was injured in an accident that was due entirely to other causes than such failure to comply with the ordinance. Gibson v. Leonard, 143 Ill. 182, 32 N. E. Rep. 182. Negligence on the part of the owner cannot be presumed from the mere fact that one of the weights by which the elevator was operated became detached from the iron rod by which it was suspended and kept in place, and fell through the top of the elevator car upon the servant employed to operate it, and injured him. Davidson v. Davidson, 46 Minn. 117, 48 N. W. Rep. 560. The fall of an elevator raises a presumption of negligence upon the part of the person responsible for the condition of the machinery connected therewith in favor of a person injured, who had no control of the machinery, where the fall is such as, in the ordinary course of things, does not happen if the machinery is in good order. Ellis v. Waldron (R. I.), 33 Atl. Rep. 869. The mere fact that an elevator about which he was employed, fell and injured a servant, without evidence that the master knew or could have known of its defective condition is not sufficient to charge the master with negligence. Moran v. Racine Wagon Co., 74 Hun, 454, 26 N. Y. Supp. 852. It is for the jury to say, after a consideration of all the facts, whether a notice to a boy in charge of an elevator and to other agents of the owner, that a man was about to be put to work in the shaft to paint it, was sufficient notice to the owner to charge him with negligence in per mitting the elevator to be so operated as to injure the

painter. Holmes v. Junod (Cir. Ct. App., 5th Cir.), 68 Fed. Rep. 858.

A person assumes the risks arising from defects in a freight elevator if he takes passage on it without invitation, and with knowledge that there is a passenger elevator in the building. Amerine v. Porteous, 105 Mich. 347, 63 N. W. Rep. 300. Where a person en tered a building in which there were two elevators, one of which was used for passengers and had regular attendants, while the other was seldom used, and no one was in charge of it, and got into the one which was not in use and undertook to run it to an upper floor and was injured in so doing, it was held that he could not recover for his injuries, although he had frequently used that elevator before in the same way, but without the knowledge of the owner of the building. Hansen v. State Bank Bldg. Co. (Iowa), 69 N. W. Rep. 1020. A person employed by a tenant of the owner of a building in which there is a passenger elevator operated by a boy employed for that pur pose, has no right, merely because the boy is absent when he wishes to use the elevator, to undertake to operate it himself. And if he does so, and receives such injuries by reason of a defect in the machinery as to cause his death, his administrator cannot recover damages for his death from the owner of the building. Dashiell v. Washington Market Co. 25 Wash. L. Rep. 123. A freight elevator in a high building, placed in position and in use to convey articles between the several floors and the basement, is not per se a machine, device or appliance im minently dangerous to the lives of others, so that serious injury to any person using, operating, ap proaching or being near it would be the probable consequence of such use. Ziemann v. Kieckhefer Elevator Manfg. Co., 90 Wis. 497, 63 N. W. Rep. 1021. The owner of a freight elevator does not owe the same duty to his employees who ride thereon that a common carrier owes to a passenger, but is only bound to equip the elevator with such safety appli ances as are in common use, though others exist which would give additional security to any one rid ing on the elevator in case the machinery should break. And his failure to inspect the elevator does not render the owner liable to an employee injured by reason of defects which could not have been dis covered by a careful inspection. Boess v. Clausen & P. Brew. Co., 42 N. Y. Supp. 848. A person who oc cupies with his business all of the five story building in which it is carried on, containing a freight elevator on which the employees are permitted but not required to ride in going to and from their work, owes such employees while so riding the degree of care due from a master to his servants, and not that im posed by law on a common carrier of passengers. McDonough v. Lamphear, 55 Minn. 501, 57 N. W. Rep. 152. Where the employees in a factory or ware house are merely permitted to ride on a freight elevator between different floors of the building for their own pleasure and convenience, they having knowl edge that it was constructed and is maintained only for moving freight, they assume all risks arising from its construction and operation, and the master is only bound to use ordinary care to avoid accidents; but if the servants are directed or expressly authorized to ride in the elevator, the master assumes the duty of rendering it as safe as reasonable care and foresight can make it. Wise v. Ackerman, 79 Md. 375, 25 Atl. Rep. 424. Where the elevator machinery was in good order and the elevator was carefully managed by a prudent and competent operator, the owner is not liable for injuries to one of his employees, which he

received while attempting to get on the elevator while in motion as it was ascending, his duties not requiring him to do so. Block v. Swift & Co., 161 Ill. 107, 43 N. E. Rep. 591, affirming 58 Ill. App. 354. No recovery can be had for injuries sustained by a person whose foot was caught between the landing and the top of the elevator, where he came running up to the elevator after it had started and while the door was closing, crying out to hold on, pushed the door open and attempted to get into the elevator while it was moving, and was injured in the attempt. Green v. Y. M. C. A., 65 Ill. App. 459. A boy eight years of age, who had been distinctly, warned not to put his head over the gate of an elevator, and was of sufficient intelligence to understand the danger in doing so, cannot recover for an injury caused by the elevator descending on his head while he was looking over the gate. Guichard v. New, 41 N. Y. Supp. 456, 9 App. Div. 485. A mason who unnecessarily thrust his head through an open window, four feet above the floor, into an elevator shaft, and was struck and injured by the elevator, cannot hold the owner of the building liable for his injuries, although he went into the building by the owner's invitation to inspect some rooms with a view to doing some work, and there was nothing to indicate that the window opened into an elevator shaft. Peake v. Buell, 90 Wis. 508, 63 N. W. Rep. 300. Where a freight elevator had just been repaired by an expert, who then told the owner that it was stili unsafe for passengers, and the evidence showed that it was was of a class of rather poor elevators, and contained defects of which the owner had knowledge, it was held to be a question for the jury whether the owner had used reasonable care to make the elevator safe for the purpose for which an employee was using it when injured. Goggin v. D. M. Osborne & Co. (Cal.), 47 Pac. Rep. 248. Where a customer in a store, in an attempt to use the freight elevator at the rear of the building, instead of going to the passenger elevator at the front, without invitation from anybody, walked through the door leading to the elevator shaft and fell down the shaft, he cannot recover from the proprietor of the store for his injuries. Bennett v. Butterfield (Mich.), 70 N. W. Rep. 410. Where a portion of a building is let, and the tenant has the right to use the elevator in common with the landlord and the other tenants, such elevator to be operated by the tenant when required by his business necessities, and the landlord expressly covenants in the lease that he will keep the elevator and approaches in constant repair and in perfect condition for the lessee's use, and the landlord retains the general control over the elevator and its approaches, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of the elevator. Olson v. Schultz (Minn.), 70 N. W.Rep. 779.

A master is not liable for injuries to an employee caused by defects in a freight elevator of which be had no knowledge, when he had it inspected every three months by the firm of which he bought it, where it appears that the elevator was of the most approved kind, and all defects that were discovered were promptly repaired, and that the employee frequently rode upon the elevator and had an equal opportunity with his employer to know of defects. Hart v. Naumburg, 123 N. Y. 641, 25 N. E. Rep. 385. Where an elevator boy fifteen years old, who "knew all there was to do with the elevator," was injured by the sudden starting of a freight elevator by a new employee to whom he had given instructions as to the manner of starting and

stopping the elevator, while he was leaning against a beam of the elevator to tie his shoe, he cannot hold the owner liable for his injuries. Sullivan v. Lally, 166 Mass. 265, 44 N. E. Rep. 221. Where the persons in charge of an elevator permitted a boy less than seven years old to sit on the floor of the elevator while it was in motion, in such a position that, in turning round to answer a call from one of them his foot and leg were caught between the elevator and the floor of the car, the owner of the building is liable, for his injuries, provided the boy was exercising the degree of care for his own safety when injured which ordinarily careful and prudent children of his age, intelligence and discretion usually observe under the same circumstances. Kentucky Hotel Co. v. Camp, 30 S. W. Rep. 1010, 17 Ky. L. Rep. 297. A boy who, on entering an elevator in which there were no other passengers, told the conductor whom he wished to see, was not negligent in placing himself, as soon as the elevator stopped, in a position to step out when the door should be opened; and the owner is liable for injuries received by him from having his foot caught between the floor of the elevator and the top of the door of the elevator shaft, when the elevator was suddenly started again by the man in charge without any warning to the boy. Mitchell v. Keane, 87 Hun, 266, 33 N. Y. Supp. 1045, 67 N. Y. S. R. 731. An employee of one of several tenants of a building who used the freight elevator in common cannot recover from his employer for injuries received by the fall of the elevator on the day the employer moved into the building, although the accident would not have happened had the elevator been provided with a safety clutch, where the evidence showed that a sign was posted at the street entrance forbidding persons to ride in the elevator, and there was no evidence that defendants authorized or required plaintiff to use it, and it did not appear that defendant knew or could have known of the absence of the safety clutch. Hansen v. Schneider, 58 Hun, 60, 11 N. Y. Supp. 347.

Where the owner of an elevator negligently failed to maintain a sufficient lock on the door of the elevator shaft, and the door was opened and left open, by a stranger who could not have done so had there been a suitable lock,the owner is liable to a person who is injured without his fault, by walking into and falling down the elevator shaft, the strangers' act not being such sufficient intervening cause of the injuries as to relieve such owner from liability for his negligence. Colorado Mortg. & I. Co. v. Rees, 21 Colo. 435, 42 Pac. Rep. 42. A servant who continues in an employment with knowledge that his master has not provided a cover for the elevator upon which his duties require him to ride, assumes the risk of injury from a substance falling upon him from above while riding on the uncovered elevator. Shields v. Robbins, 38 N. Y. Supp. 214, 3 App. Div. 582, 73 N. Y. S. R. 708. The New York statute requiring that a trap door to close the elevator opening shall be provided at each floor, imposes a duty upon the owner of the building and not upon the several tenants who may occupy the different floors, where the building is let to a number of different persons. Malloy v. New York Real Estate Asso. (N. Y. Super. Ct.), 34 N. Y. Supp. 679; 13 Misc. 496. Proof of the failure of the owner of a building to comply with this statute makes out a prima facie case of negligence on his part in a suit for the death of an employee from a barrel of flour roll. ing into the elevator shaft under the bar which formed its only guard, and falling on him. Freeman V. Glens Falls Paper Mill Co., 15 N. Y. Supp. 657. The master who has placed a foreman in