Opinion of the Court.

[37 App. nent to the issue here involved, nor is the question of intervening rights one that Frost may raise in this proceeding. Norling v. Hayes (just decided) ante, 169.

The appellee having suggested a diminution of the record, and prayed the issuance of a writ of certiorari to supply the same, the writ was ordered to issue, upon condition, however, that he deposit with the clerk of this court the estimated cost of printing the additional matter, that the appellant might be reimbursed if, upon final hearing, it should appear that such additional matter was immaterial to the issue.

The matter then brought up covers over forty pages of the printed record, and includes (1) affidavits not admissible in evidence, and to the exclusion of which below no error was assigned; (2) the motion for rehearing before the Primary Examiner, the inclusion of which in the record being prohibited by rule 5 of this court; (3) notice to counsel for Frost concerning the operation of the so-called Chase model, not at all relevant here; (4) Frost's petition, including argumentative matter supporting it, to the Commissioner, to have him exercise his supervisory authority and reverse the Board of Examinersin-Chief in overruling Frost's motion for the dissolution of the interference, the same being unnecessary, as the record already contained the petition, minus the supporting argument; and (5) Chase's motion to dismiss the last-named petition, also unnecessary, as the record already showed that such a motion was made.

The clerk will therefore, out of the deposit in his hands, reimburse appellant for printing the above unnecessary matter. The decision of the Commissioner is affirmed, and the clerk will certify this opinion as by law required.

Affirmed.

D. Ɑ]

Syllabus.

MUNSEY v. WEBB.*

CARRIERS; NEGLIGENCE; PROXIMATE CAUSE; QUESTIONS FOR JURY.

1. One who owns and controls a building used for business purposes, and equipped with passenger elevators, is a carrier in the transportation of passengers using the elevators by his invitation, and while he is not an insurer of their safety, he is required to exercise the highest degree of care and diligence for their safety; and it is doubtful if there is any known method of conveyance in which a higher degree of care is required.

2. The proximate cause of an injury is ordinarily a question of fact for the jury. If there are no circumstances from which a jury can reasonably find that the negligence of the defendant was the proximate cause of the injury, the question is one for the court. If the facts are such as to cause reasonable minds to differ, the question is one for the determination of the jury.

3. Where, in an action against the owner of a building equipped with elevators, for the death of a business occupant of the building, while a passenger on one of the elevators, it appeared that the deceased, who was standing about the center of the moving car, suddenly reeled and fell, and his head protruded through the open car door, and was caught between the floor of the car and the underside of a projecting floor; that no jerk or jar of the car occurred to throw deceased from his place; that his fall was not caused by any act of the defendant, or his employees, or from any defect in the car itself, but that the projecting floors of the building were not equipped with flares or fenders on the underside, as appeared to be customary, to guard against accident by deflecting into the car any object coming in contact with them; that the collapsible door of the car was not closed; and the elevator boy, in violation of his instructions, did not have his arm extended across the open door, and that there was an emergency brake on the car which the boy testified he did not know how to operate, and which he had not been instructed how to operate;

Elevators.-The cases on the subject of liability for injury to elevator passengers are collected in notes to Mitchell v. Marker, 25 L.R.A. 33, and Edwards v. Manufacturers' Building Co. 2 L.R.A. (N.S.) 744.

and where it further apeared from an autopsy that the brain and heart of the deceased were in normal condition, and there was no indication of apoplexy or a condition that would cause a fatal stroke, it was held that whether defendant's negligence was the proximate cause of the death of the deceased, and whether the deceased was dead before his head was caught between the floor and the car, were questions of fact for the jury.

No. 2251. Submitted February 14, 1911. Decided May 1, 1911.

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for the death of plaintiff's inAffirmed.

testate.

The COURT in the opinion stated the facts as follows:

This suit was brought in the supreme court of the District of Columbia by appellee, Wesley Webb, administrator, plaintiff below, to recover damages for the death of his intestate, Samuel T. Pennington, who was killed in an elevator accident in a building owned and controlled by appellant, Frank A. Munsey. For convenience, appellee will hereafter be referred to as plaintiff, and appellant as defendant.

It appears that the accident occurred in what is known as the Washington Times Building, in this city. The elevator shaft is constructed of iron grill-work. The floors of the building project into the shaft on all sides a distance of 3 inches. The elevator car is sufficiently small to leave a space between the outside of the car and the projecting floors of 2 inches, leaving a space between the grill-work of the elevator shaft and the sides of the car of 5 inches. At the point of entrance on each floor the shaft is provided with a sliding door. The entrance to the car is provided with a collapsible sliding door.

On the morning of the accident, plaintiff's intestate entered the elevator on the first floor of the building, to be carried to the eighth floor, where his place of business as a government clerk was located. At the time of the accident, which occurred between the fourth and fifth floors, the collapsible sliding door

of the car was not closed. Pennington was the only passenger, and was standing about the center of the car, when he suddenly reeled and fell. His head protruded through the open car door a sufficient distance to be caught between the floor of the car and the underside of the projecting fifth floor of the building, killing him almost instantly.

Mr. Charles A. Douglass, Mr. Gibbs L. Baker, Mr. Hugh H. Obear, Mr. Charles C. Miller, Mr. Wilton J. Lambert, Mr. W. H. Price, Jr., and Mr. C. K. Mount for the appellant.

Mr. Arthur Peter for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

It is important at the outset to consider the duty which defendant owes to persons entering his building for legitimate purposes, and using the elevators placed therein for their accommodation. The building in question is a business block devoted to public use. The elevators are an essential part of the building, and persons using them do so by the invitation of the defendant. It follows, therefore, that defendant in this instance is a carrier engaged in the transportation of passengers. While not, in the strict sense, an insurer, he is required to exercise the highest degree of diligence and care for the safety of persons using his elevator as agencies of transportation. It is doubtful if there is any known method of conveyance in which a higher degree of care is required in its construction and operation than that of an elevator. In Mitchell v. Marker, 25 L.R.A. 33, 10 C. C. A. 306, 22 U. S. App. 325, 62 Fed. 139, Mr. Justice Lurton said: "We see no distinction in principle between the degree of care required from a carrier of passengers horizontally, by means of railway cars or stage coaches, and one who carries them vertically, by means of a passenger elevator."

The single exception assigned consists in the refusal of the court below to direct a verdict for the defendant. The record

discloses that, at the time of the accident, the deceased was standing about the center of the car. The car was moving at the normal rate of speed. No jerk or jar occurred in its movement to throw deceased from his place. His fall was not caused from any act of defendant or his employees, or from any de fect in the elevator itself. The record, however, discloses that at the time of the accident the projecting floors were not equipped with flares or fenders on the underside, as appears to be customary, to guard against accident by deflecting into the car any object coming in contact with them; that the door of the car was not closed; that, in violation of the instructions of the superintendent of the building, the elevator boy did not have his arm extended across the open door, and that there was an emergency brake on the car which the elevator boy testified. he did not know how to operate, and in respect of the operation of which he had been given no instructions. Upon these issues of fact the jury, by its verdict, found the defendant guilty of negligence. On the other hand, it is not contended that plaintiff's intestate was guilty of contributory negligence. The sole question presented, therefore, is whether or not defendant's negligence was the proximate cause of the accident. The proximate cause of an injury is ordinarily a question of fact for the jury. If there are no circumstances from which a jury can reasonably find that the negligence of a defendant was the proximate cause of the injury, the question is one for the court, and not for the jury. But if the facts are such as to cause reasonable minds to differ, then the question is one clearly for the determination of the jury. It was argued by counsel for defendant that the fall of the deceased was caused not through any defect in the movement of the elevator, but by the act of God; and as this was the immediate, proximate cause of the injury, however negligent the defendant's agent may have been in leaving the door of the car open when the elevator was in motion, it cannot be charged that the accident was due to the negligence of defendant.

We are not impressed with this contention. As was said in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed.