injury for which damages are allowed. The only error occurring on the trial of this case was in assessing the damages, and upon this issue alone the order appealed from must be modified, and a new trial granted.

So ordered.

EVAN J. TVEDT v. HENRY W. WHEELER.1

November 19, 1897.

Nos. 10,694-—(109).

Freight Elevator-Failure of Landlord to Fence Wheel Hole-G. S. 1894, 2250.

The defendant was the owner of a warehouse which he built and equipped with a freight elevator, operated by water pressure for use in such building. At one end of the elevator shaft was a wheel hole or opening in the floor, through which ran an endless cable over a movable pulley, for the purpose of raising and lowering the elevator. This wheel hole, including the pulley and cable, was a part of the elevator and of the building itself. They were dangerous, if not guarded; but the defendant never fenced or protected them, although it was practicable to do so. He leased the building for a warehouse, and the lessee continued to use it with the wheel hole unguarded. The plaintiff, an employee of the lessee, was injured because the wheel hole was not protected. Held, construing G. S. 1894, § 2250, relating to the protection of employees, that the initial duty rested upon the defendant to guard the wheel hole before using the building himself, or leasing it to another for use as a warehouse, and that he was liable to the plaintiff, who was injured by his neglect to comply with the statute.

Same-Contributory Negligence.

Held, that the evidence does not show, as a matter of law, that the plaintiff was guilty of contributory negligence.

Same Evidence.

Held, that the trial court did not err in receiving evidence as to the customary way of sending the elevator up and down in the warehouse in question, nor in receiving evidence as to the cost of guarding the wheel hole, nor in modifying certain requests of the defendant for instructions to the jury.

1 Reported in 72 N. W. 1062.

70 M.-11

Appeal by defendant from an order of the municipal court of Duluth, Edson, J., denying a motion for a new trial after a verdict of $350 for plaintiff. Affirmed.

Allen, Baldwin & Baldwin, for appellant.

A lessor of premises wholly in possession of the lessee is not liable to the employees of the latter. Harpel v. Fall, 63 Minn. 520; Schip v. Pabst, 64 Minn. 22; Fellows v. Gilhuber, 82 Wis. 639, 52 N. W. 307; Perez v. Rabaud, 76 Tex. 191; McLean v. Fiske, 158 Mass. 472; Szathmary v. Adams, 166 Mass. 145. And the rule applies to the operation of elevators. Freeman v. Hunnewell, 163 Mass. 210; Olson v. Schultz, 67 Minn. 494. Inasmuch as G. S. 1894, § 2250, imposes a continuous duty, it refers only to parties in possession and control; an intention to change the common law will not be presumed. Sutherland, St. Const. § 289 et seq. There is no reason why elevator holes should be fenced if the building is not used, for there would be no employees to be protected. Gibson v. Leonard, 143 Ill. 182; Lee v. Smith, 42 Oh. St. 458. Any man of ordinary intelligence must know that wire cables and movable pulleys are dangerous; the employee is bound to inquire. Bailey, Mast. Liab. 116.

The chief test of contributory negligence is the capacity of plaintiff to understand the danger and his duty regarding the same. Sauer v. Union, 43 La. An. 699; Dandie v. Southern, 42 La. An. 686; Haven v. Pittsburgh, 151 Pa. St. 620; Cunningham v. Chicago, 17 Fed. 882; McCarthy v. Lehigh, 48 Minn. 533; McCallum v. McCallum, 58 Minn. 288. In undertaking work not properly his at the request of a fellow servant plaintiff assumed the risks and was guilty of contributory negligence. Mellor v. Merchants, 150 Mass. 362; Osborne v. Knox, 68 Me. 49; Knox v. Pioneer, 90 Tenn. 546; Brown v. Winona, 27 Minn. 162; Freeberg v. St. Paul, 48 Minn. 99.

John Jenswold, Jr., for respondent.

G. S. 1894, § 2250, imposed duties not specifically upon the owner or his agent, superintendent or other person in charge of the building, but it is nevertheless an absolute duty chargeable upon all. Osborne v. McMasters, 40 Minn. 103; Bott v. Pratt, 33 Minn. 323. For plaintiff to recover for negligence in performance of a statutory

duty he must show that he is within the class for whose benefit the legislation was designed; that there was a negligent violation of the statutory requirement by defendant, and that he suffered damages as a proximate result of such violation. 2 Jaggard, Torts, 918. Disobedience of a statute is per se negligence. Correll v. Burlington, 38 Iowa, 120; Indiana v. Barnhart, 115 Ind. 399; Jetter v. New York, 2 Abb. App. 458; Johnson v. Bruner, 61 Pa. St. 58; Couch v. Steel, 3 E. & B. 402, 414; Thomas v. Winchester, 6 N. Y. 397; Cooley, Torts, 654; Sherman & Redf. Neg. 4; Union v. McDonald, 152 U. S. 262; Atchison v. Reesman, 60 Fed. 370; Dickson v. Omaha, 124 Mo. 140; Hayes v. Michigan, 111 U. S. 228; Bartlett v. Roach, 68 Ill. 174. Leasing of the property by the person upon whom the statutory obligation rests does not exempt him from liability for failure to supply the safeguards required by the statute. Hayes v. Northern, 74 Fed. 279, 283; Willy v. Mulledy, 78 N. Y. 310; McLaughlin v. Armfield, 58 Hun, 376; Keith v. Granite, 126 Mass. 90; Gorman v. McArdle, 67 Hun, 484; Parker v. Barnard, 135 Mass. 116; McRickard v. Flint, 114 N. Y. 222.

Whether plaintiff observed the dangers about him or, in the exercise of reasonable care, ought to have done so, is a question for the jury; and it should consider his duties, the length of his service, the promptness of action required of him, and whether the repairing of or attending to the machinery was his duty. Carver v. Christian, 36 Minn. 413; Steen v. St. Paul, 37 Minn. 310; Deering, Neg. 198; Barbo v. Bassett, 35 Minn. 485; Olmscheid v. Nelson, 66 Minn. 61; Roux v. Blodgett, 85 Mich. 519; Johnson v. St. Paul, 43 Minn. 53. Risks are taken by most prudent men, and plaintiff is not to be debarred from recovery for doing what prudent men would ordinarily do under like circumstances. Kelly v. Southern, 28 Minn. 98; Corbin v. Winona, 64 Minn. 185. To justify a nonsuit on the ground of contributory negligence, the negligence must be so clear that neither by construction nor inference could the evidence warrant the opposite conclusion. Bennett v. Syndicate, 39 Minn. 254; Emery v. Minneapolis, 56 Minn. 460. The risks assumed are those ordinarily incident to the occupation, properly carried on, under like circumstances, known to plaintiff and voluntarily encountered. Bergquist v. Chandler, 49 Minn. 511. He does not assume increased risks and

dangers caused by the negligence of his employer, of whch he has no notice. Hлas v. Balch, 6 C. C. A. 201; Lawson v. Truesdale, 60 Minn. 410. That he had the same means as his master of knowing his fellow servant's incompetence does not charge him with the assumption of the risk. Daly v. Sang, 91 Wis. 336. He may have known of defects and still recover, unless he also knew of the dangers attending them. Russell v. Minneapolis, 32 Minn. 230; Cook v. St. Paul, 34 Minn. 45; Wuotilla v. Duluth, 37 Minn. 153; Steen v. St. Paul, supra; Rolseth v. Smith, 38 Minn. 14; Hungerford v. Chicago, 41 Minn. 444; Robel v. Chicago, 35 Minn. 84; McDonald v. Chicago, 41 Minn. 439; Neubauer v. Northern, 60 Minn. 130.

Whether a particular act was within the servant's employment depends upon whether it was committed by the master's authority expressly conferred or implied from the nature of the employment and its incidents. It is a mixed question of law and fact referable to the peculiar facts and circumstances. Thiesen v. Porter, 56 Minn. 555; Voyer v. Dispatch, 62 Minn. 393; Monforton v. Detroit, (Mich.) 71 N. W. 586. If defendant's negligence was the proximate cause of the injury contributory negligence on part of a fellow servant is no defense. Franklin v. Winona, 37 Minn. 409. Defendant was bound to provide such safeguards as would meet the different conditions and duties required of employees by the custom obtaining in warehouses. Sather v. Ness, 42 Minn. 379. Proof of the general custom or the manner of doing the work is competent though not conclusive as to whether plaintiff's act was negligent. Flanders v. Chicago, 51 Minn. 193; Steffenson v. Chicago, 51 Minn. 531; Armstrong v. Chicago, 45 Minn. 85; O'Malley v. St. Paul, 43 Minn. 289; Larson v. St. Paul, 43 Minn. 423; Doyle v. St. Paul, 42 Minn. 79.

Assignment of error merely pointing out the error, which is not noticed anywhere in the argument or supported by authority, will not be considered on appeal. Neimeyer v. Weyerhaueser, 95 Iowa, 497; Minneapolis v. Firemen, 62 Minn. 315; Dodge v. McMahan, 61 Minn. 175. Admission of testimony of an expert to an act forbidden by statute is without prejudice to the defendant. Thompson v. Johnston, 86 Wis. 576.

The court is justified in using its own language to convey the same

idea that is contained in a request to charge. Dallemand v. Janney, 51 Minn. 514. An instruction asked and refused, but covered by a general charge, is no ground for error. Barbo v. Bassett, supra; Columbia v. National, 52 Minn. 224; Smith v. St. Paul, 51 Minn. 86; Delude v. St. Paul, 55 Minn. 63. When verbal inaccuracies or omissions in the charge are not called to the attention of the court, a general exception to the entire paragraph is insufficient. Dallemand v. Janney, supra.

START, C. J.

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 basement 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