And this measure of care applies as well to the selection of competent operators as to the operation of the machinery and cars. 12 Sec. 101. Same subject-Must allow passengers reasonable time to enter or leave car.-The rules regulating the care to be exercised by railroads in allowing their passengers a reasonable time to enter or leave their cars in safety apply with equal, if not more reason and force, to the operation of passenger elevators, since the danger of starting before the passenger has boarded or left an elevator car is even greater than the danger of starting a train under similar circumstances. The of elevators are not common carriers and bound to use the utmost human care and foresight, but are required only to use reasonable care in the character of the appliance they provide, and in its maintenance and operation. Evidence that an elevator stopped at a floor where a pas senger was killed, without the floor being called, and that it was started before the door was closed, is sufficient to justify the submission of the question of the defendant's negligence to the jury. Masonic, etc., Assn. v. Collins, 210 Ill. 482, 71 N. E. Rep. 396. Leaving the door of a passenger elevator shaft open and unguarded, so that persons taking the usu al course to enter the elevator car are liable to fall down the shaft, is negligence. Haymarket Theatre Co. v. Rosenberg, 77 Ill. App. 183. But it is not negligence to permit a movable stool to remain in the elevator for the use of the operator. Gibson V. International Trust Co., 186 Mass. 454, 72 N. E. Rep. 70. Nor is it actionable negligence on the part of the owner of an elevator where, on account of someone having moved the stool of the operator, the operator, in attempting to sit down, loses his balance, catches the apparatus that moves the elevator and sends it down, thereby injuring a passenger. Gibson v. International Trust Co., 177 Mass. 100, 58 N. E. Rep. 278, 52 L. R. A. 928. If the passenger be chargeable with contributory negligence, he will be barred from a recovery. Blackman v. O'Gorman Co., 22 R. I. 638, 49 Atl. Rep. 28; Green v. Y M. C. A., 65 Ill. App. 459. In an action by a newsboy for injuries sustained on a passenger elevator, it is competent to show that he had been warned to keep off the elevator before the happen ing of the injury; if such were proven, he would be entitled only to the degree of care due a trespasser, Springer v. Byram, 137 Ind. 15, 36 N. E. Rep. 361, 45 Am. St. Rep. 159, 23 L. R. A. 244. 42. Fox v. City of Philadelphia, 208 Penn. St. 127, 57 Atl. Rep. 356, 65 L. R. A. 214. certainly, though they cannot be regarded strictly as common carriers in the sense which the phrase "common carrier" had previously juridically acquired, yet in their relations to the public, in their duty to serve all impartially, in their duty to avoid discrimination, if not in their responsibility for accurate transmission of messages they occupy a position very closely analogous to that of common carriers. Sec. 96. Livery stable keepers are not common carriers.— Ordinarily, livery stable keepers, engaged in the business of letting for hire teams and vehicles, either with or without drivers, are not carriers of passengers within the legal meaning of that term. They do not hold themselves out as undertaking for hire to carry indiscriminately any person who may apply. Those who hire their vehicles are not necessarily restricted to vehicles or drivers designated by the proprietor, but may, in a measure, protect themselves by selecting the particular horse or driver they wish to hire. The duties and obligations of carriers of passengers are, therefore, not applicable to mere livery stable keepers.35 Sec. 97. Messenger companies. To the extent that a telegraph company offered its services to the public as a carrier of packages, such packages being carried by messenger boys furnished by the company, it was held that the company was a 35. Stanley v. Steele, 77 Conn. 688, 60 Atl. 640, 69 L. R. A. 561; Copeland v. Draper, 157 Mass. 558, 32 N. E. Rep. 944, 34 Am. St. Rep. 314, 19 L. R. A. 283; Erickson v. Barber Bros., 83 Iowa, 367, 49 N. W. Rep. 838; Siegrist v. Arnot, 86 Mo. 200, 56 Am. Rep. 424. A livery stable keeper who lets his team and vehicle, accompanied by a driver of his own selection, for hire, to go upon a particular journey, is not a carrier of passengers and does not assume the duties and obligations of such a carrier. He is, at most, a private carrier for hire, and is required to exercise the same measure of skill and care which is applied to a person engaged in any special pursuit in which he undertakes to perform services for others for compensation. Such a person undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance. But ordinary skill, diligence and prudence is all that the law exacts; that is, the exercise of such care and skill as prudent men, experi enced in the business, are accus common carrier.36 But where a company engaged in the business of furnishing messengers for hire, such messengers for the time being being under the control and direction of the persons engaging their services, it was held that the messenger com pany was not, as to the articles carried, a common carrier.37 Sec. 98. (§ 81b.) Log-driving companies not common carriers. So log-driving and booming companies organized for the purpose of driving, running, rafting and booming logs are not common carriers of the logs delivered to them for that purpose.38 Sec. 99. (§ 81c.) Drovers and agisters not common carriers. For like reasons, drovers and agisters employed to drive cattle and other animals are held not to be common carriers.39 Sec. 100. (81d.) Owners and managers of passenger elevators. The owners and managers of passenger elevators, although spoken of by some courts as common carriers of passengers, cannot properly be so classed. The public carrier of passengers, on account of the nature of his employment, is charged in law with certain duties owed to the public among which is that of receiving upon his vehicles all who may offer themselves for transportation, and who stand ready to pay the legal fare and comply with his reasonable rules and regulations. When the nature of the business of operating a passenger elevator is considered, it is clear that the proprietor owes no such duty to the public and is therefore not a carrier of passengers in the full sense of the term as legally understood. 10 Nevertheless, with reference to the safety of their passengers, the law has imposed upon the 40 37. Haskell v. Boston, etc., Mes- 329, 60 N. E. Rep. 795, 88 Am. St. Rep. 384, proprietors of passenger elevators duties precisely similar to those exacted of passenger carriers by railroad. The safety and lives of those who avail themselves of this means of carriage must of necessity be intrusted in a great measure to the care of those who control and operate the cars. The law, therefore, justly holds that while the owners of passenger elevators are not insurers of the safety of their passengers, they are bound to exercise in their behalf the highest degree of skill and foresight, or, as some courts have expressed it, the utmost human care and foresight consistent with the efficient use and operation of the means of conveyance employed.41 41. Goodsell v. Taylor, 41 Minn. 207; Bullock v. Butler Exchange Co., 22 R. I. 108, 46 Atl. Rep. 273; Treadwell v. Whittier, 80 Cal. 575, 22 Pac. Rep. 266, 13 Am. St. Rep. 175; Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 N. E. Rep. 178, 64 Am. St. Rep. 35, affirming 70 Ill. App. 166; Springer v. Ford, 189 Ill. 430, 59 N. E. Rep. 953, 82 Am. St. Rep. 464, 52 L. R. A. 930; Chicago Exchange Bldg. Co. v. Nelson, 197 Ill. 334, 64 N. E. Rep. 369; Springer v. Schultz, 205 Ill. 144, 68 N. E. Rep. 753, affirming 105 Ill. App. 544; Field v. French, 80 Ill. App. 78; Western Union Telegraph Co. v. Woods, 88 Ill. App. 375; Winheim v. Field, 107 Ill. App. • 145; Morgan v. Saks, Ala. 38 So. Rep. 848; Lee v. Knapp & Co., 155 Mo. 610, 56 S. W. Rep. 458; Becker v. Lincoln Real Estate & Bld. Co., 174 Mo. 246, 73 S. W. Rep. 581; Luckel v. Century Bld. Co., 177 Mo. 608, 76 S. W. Rep. 1035; Goldsmith v. Bld. Co. -Mo. App. 83 S. W. Rep. 1112; McGreil v. Buffalo Office Bld. Co., 153 N. Y. 265, 47 N. E. Rep. 305; Russɔ v. Morris, etc., Imp. Assn., 104 La.. 426, 29 So. Rep. 46; Phillips v. Pruitt, 26 Ky. Law Rep. 831, 82 S. W. Rep. 628; Burgess v. Stowe, 134 Mich. 204, 96 N. W. Rep. 29; Edwards v. Burke, 36 Wash. 107, 78 Pac. Rep. 610; Bremer v. Pleiss, 121 Wis. 61, 98 N. W. Rep. 945; Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. Rep. 338; Fox v. City of Philadelphia, 208 Penn. St. 127, 57 Atl. Rep. 356, 65 L. R. A. 214; Fox Philadelphia, 208 Penn. St. 127, 57 Atl. Rep. 356, 65 L. R. A. 214; Stix, Mo. -, 88 S. W. Rep. 108; Shellaberger v. Fisher, C. A. 143 Fed. 937. - C. And this measure of care applies as well to the selection of competent operators as to the operation of the machinery and cars. 12 Sec. 101. Same subject-Must allow passengers reasonable time to enter or leave car.-The rules regulating the care to be exercised by railroads in allowing their passengers a reasonable time to enter or leave their cars in safety apply with equal, if not more reason and force, to the operation of passenger elevators, since the danger of starting before the passenger has boarded or left an elevator car is even greater than the danger of starting a train under similar circumstances. The of elevators are not common carriers and bound to use the utmost human care and foresight, but are required only to use reasonable care in the character of the appliance they provide, and in its maintenance and operation. Evidence that an elevator stopped at a floor where a pas senger was killed, without the floor being called, and that it was started before the door was closed, is sufficient to justify the submission of the question of the defendant's negligence to the jury. Masonic, etc., Assn. v. Collins, 210 Ill. 482, 71 N. E. Rep. 396. Leaving the door of a passenger elevator shaft open and unguarded, so that persons taking the usual course to enter the elevator car are liable to fall down the shaft, is negligence. Haymarket Theatre Co. v. Rosenberg, 77 Ill. App. 183. But it is not negligence to permit a movable stool to remain in the elevator for the use of the operator. Gibson v. International Trust Co., 186 Mass. 454, 72 N. E. Rep. 70. Nor is it actionable negligence on the part of the owner of an elevator where, on account of someone having moved the stool of the operator, the operator, in attempting to sit down, loses his balance, catches the apparatus that moves the elevator and sends it down, thereby injuring a passenger. Gibson v. International Trust Co., 177 Mass. 100, 58 N. E. Rep. 278, 52 L. R. A. 928. If the passenger be chargeable with contributory negligence, he will be barred from a recovery. Blackman v. O'Gorman Co., 22 R. I. 638, 49 Atl. Rep. 28; Green v. Y M. C. A., 65 Ill. App. 459. In an action by a newsboy for injuries sustained on a passenger elevator, it is competent to show that he had been warned to keep off the elevator before the happen ing of the injury; if such were proven, he would be entitled only to the degree of care due a trespasser, Springer r. Byram, 137 Ind. 15, 36 N. E. Rep. 361, 45 Am. St. Rep. 159, 23 L. R. A. 244. 42. Fox v. City of Philadelphia, 208 Penn. St. 127, 57 Atl. Rep. 356, 65 L. R. A. 214. |