3. It is maintained that the complaint shows such contributory negligence on the part of the plaintiff as to preclude a recovery by him. The question of negligence is a mixed one of law and fact, and, except in rare cases, its determination belongs to the jury. However, conduct may be so palpably imprudent and reckless as to leave no room for a difference of opinion concerning its character; and then, there being no facts to find, deliberation by a jury is unnecessary, and the court may apply the law directly to the case before it. But where, upon facts in its possession, the character of the conduct is in any degree involved in doubt, it is never proper for the court to withdraw the question of negligence from the jury. We do not think that from the statements of this complaint it can be said, as a matter of law, that the plaintiff was guilty of contributory negligence. He was rightfully in his father's house, and he was rightfully at the window. Seeing something out of place which was attached to the house, directly under the window, and within his reach it might very naturally occur to him to replace it; and his act in so doing, if he had no knowledge of the purpose of the attachment, and no reason to apprehend danger from it, could hardly be called recklessness. It might have been simply the result of an involuntary impulse to restore order where he found disorder, and to do something which he had no grounds for supposing he could not do with perfect safety. Under issues made upon the complaint, proof is admissible from which contributory negligence might be found, and under the allegations of the complaint proof is admissible from which a contrary conclusion might be drawn; and we do not conceive that we have the right to say that the averment of an act which upon issue joined may be interpreted for or against him by the evidence, amounts to an admission, conclusive upon him, that his own want of care contributed to his injury.

The complaint of Levina E. Walters, after setting forth the facts upon which negligence was charged against the defendant in substantially the language of Clifton Wood Walters' complaint, averred that she was the mother of Clifton, and that, upon learning that he was in a situation of danger, she went in great haste to his assistance, seized upon him to remove him from the wire, and received a charge of electricity which passed from the wire through the body of Clifton into her body, and that she so sustained the injury of which she complained. What we have heretofore said on the subject of negligence and on the subject of proximate cause is applicable here, and need not be repeated; but on the question whether her complaint shows contributory negligence in her, we think it well to venture a few observations. It is in voluntarily taking hold

of Clifton while he was still in contact with the wire, that the negligence is said to have consisted. She stated in her complaint that at the time she had no knowledge that her act would be attended by any danger to herself, but the allegation is unimportant, and might as well have been omitted. The instincts of a mother when she sees her child in distress will lead her to rush headlong to its rescue, without stopping to count the cost or measure the risk which she is incurring; and to say that an act to which her affection irresistibly impelled her should be charged against her as something imprudent and unnecessary would be to shock a sentiment which is as universal as mankind. The law is not the creature of cold-blooded, merciless logic, and its inherent justice and humanity will never for a moment permit the act of a mother in saving her offspring, no matter how desperate it may have been, to be imputed to her as negligence, or at any time or in any manner used to her detriment. See Whart. Neg., sec. 308. We think that in each case the court erred in forestalling a trial, and both judgments are therefore reversed.

Reversed.

DALLEMAND v. SAALFELDT.

Supreme Court, Illinois, October, 1898.

ORDINANCE - UNINCLOSED ELEVATOR - DEATH OF EMPLOYEE CAUSED BY FALLING DOWN SHAFT. - Where a city ordinance required elevator shafts to be kept inclosed, and a servant of defendants, while operating an ascending elevator, fell from it through an uninclosed opening in the shaft to a floor, and from there back through the opening down the shaft to the basement, and was killed, the proximate cause of his death was the negligence of the defendants in failing to comply with the ordinance.

RISK OF EMPLOYMENT. - The deceased having been employed to wash bottles, the fact that he seemed to know how to run the elevator, and had run it a number of times, did not make that work an incident to his employment, nor did he assume the dangers incident thereto. EVIDENCE - FAILURE TO INSTRUCT EMPLOYEE. — Evidence that the servant was nineteen years of age, and had been employed for seven weeks, and had received no instruction regarding the use of the elevator nor informed of the danger, will support a finding that he did not know the danger.

APPEAL from judgment, Appellate Court, First District (73 Ill. App. 151), affirming a judgment for plaintiff.

David Saalfeldt, a youth nineteen years old, was employed by appellants in their bottling works in the city of Chicago, to wash bottles. While thus employed, together with two other servants of appellants, in the basement of appellants' establishment, Cavanaugh, the foreman there, received an order from Casey, the foreman on the third floor, to send him (Casey) some bottles. The foreman shouted an order to the three bottle-washers to send some bottles to the third floor, without designating which of them should do it. Cavanaugh testified that Saalfeldt had no orders to send up bottles, but that there were standing orders that the two other men should send them, but Keating, the general manager, testified: "His duty was to wash bottles, clean them properly, and put them to drain. It was not his special duty to bring up and down bottles, but he did so at times. When he was asked to assist one of the foremen in taking a large load of bottles off, it was his duty to accompany the men. The bottles were carried in cases and barrels." Saalfeldt, however, put a case of bottles on the freight elevator, and went up, managing the elevator himself, and delivered the bottles to Casey on the third floor. He then returned to the elevator to go up and get some bottles, as he said, from the fifth floor, for Casey. Casey testified that he was looking at the elevator at the time, and in about half a minute after Saalfeldt started up saw him falling below the elevator down the elevator shaft. Saalfeldt fell to the basement, and was killed. The elevator stopped automatically a few inches above the fifth floor. No one saw Saalfeldt when he fell into the shaft, or testified how the accident happened.

At the time of the injury the following ordinances were in force in Chicago, and were given in evidence:

Sec. 1571. Hoistways in which an elevator shall be used shall be constructed entirely of brick, from its lowest point, extending up through and six feet above the roof. All openings in such hoistway shall be protected by iron doors, and no wood shall be used upon. the inside of such hoistways.

"Sec. 1572. Doors in such shaft shall be made of metal and the catches or fastenings upon such doors shall be so placed that they can be opened only from the inside of the shaft and entirely under the control of the elevator operator.

'Sec. 1573. All openings not having doors shall have metallic frames, with prismatic lights in iron frames."

"Sec. 1614. All doors in shafts of elevators shall have latches so contrived that a key shall be used to unlatch the doors from the outside, but may have a knob or handle to open the door from the inside."

"Sec. 1653. It shall be the duty of every person owning, controlling and operating or using as owner, lessee or agent, any passenger or freight elevator in any building within the corporate limits, to employ some competent person to take charge of and operate the same and any such person who shall neglect to comply with the provisions of this section shall be fined the sum of $10 for each and every day of such neglect."

The doors to the elevator shaft were of wood, and could be opened either from the elevator side or the room inside. "In the basement and fourth and fifth floors were folding doors, working on hinges, and, including both doors, about six feet wide. The first, second and third stories had sliding doors the full width of the respective openings, and were operated by lifting or sliding up the door toward the ceiling, where it remained until pulled down. There was a bar across each door, from two and a half to three feet from the floor, which was attached by hinges at one end, and could be raised or lowered from either inside or outside the elevator. No particular person had charge of the elevator or its operation at the time of the accident, nor was any person employed by appellants for that special purpose." The doors were kept open in the daytime. Eisendrath, an architect, testified that the elevator carriage was in regular form of a freight elevator-"simply a large platform with the usual side-bars and cross-bars to hang the carriage on." Saalfeldt had run the elevator up and down a number of times one witness testified to a dozen times, and another testified that he manifested ability to handle it but it did not appear from the evidence whether or not the proper and safer mode of using it had been explained to him, or whether he fully understood how to use or control it. The evidence tended to show that the deceased was an intelligent boy, sober, industrious, and careful. Appellee recov ered a judgment for $1,700. The appellate court has affirmed the judgment, and appellants have further appealed to this court. MARCUS KAVANAGH and C. LE ROY BROWN, for appellants. MOSES, ROSENTHAL & KENNEDY, for appellee.

CARTER, Ch. J. (after stating the facts). The only error insisted upon by appellants is that the trial court erred in refusing to give to the jury the instruction asked by them, at the close of the evidence, to find the defendants not guilty. We are, therefore, called upon to decide whether or not the evidence, taken as true, and in its most favorable bearing in support of plaintiff's cause of action, with all proper inferences which might be justifiably drawn from it, was so insufficient to support the judgment that it should, for that reason, be set aside. Whether or not the verdict should

have been set aside as being against the weight of the evidence, is, of course, a question of fact which has been finally settled. We have to do only with the question of law.

It is not contended that the appellants were not in default in failing to comply with the ordinances of the city respecting elevators, but the first contention is that such default was not the proximate cause of the injury that no causal connection is shown between such default and the accident to the deceased. It is plain from the evidence that, had the ordinance been complied with, and the doors to the openings been kept closed, the accident could not have happened. There was no opening between the platform of the elevator and the walls of the elevator shaft through which Saalfeldt could have fallen, and it is clear from the evidence that he must have fallen into the shaft from the open space at the doors after the elevator passed up; and, taking the evidence as true, this could have happened only at the fourth floor, and as Casey, who had charge of the work on the third floor, testified that it was only about half a minute after the elevator started up from the third floor that he saw the deceased falling down the shaft beneath the elevator, we cannot say, as a matter of law, that it was an unjustifiable inference for the jury to draw that Saalfeldt was in some manner caused to fall from the elevator into the open space at the open doors of the fourth floor, and from thence into the shaft beneath. As we understand the evidence, the platform of the elevator was supported by a framework of bars, but was not inclosed, and its entire front was open, and of the same width as the doors six feet. There was a wooden bar across the open doors at the fourth floor, three feet and a half from the floor. These were double doors, eight feet and three inches high, and swung on hinges opening into the room. At the top, when closed, they fitted against or into the lower edge of the wooden partition or lining of the elevator shaft that extended up to the next opening. The operating cable was one foot from the opening. We are of the opinion that it would not have been, in the eye of the law, an unreasonable conclusion for the jury to reach, from the evidence, that the combination of these open doors, with the bar across them, and the horizontal edge of the partition projecting downward from above, were unsafe to one on the ascending. elevator, and necessarily standing near the opening to work the cable; and when this condition of things, connected with the ele vator, was maintained by the appellants in violation of the city ordinances, their negligence was sufficiently established. It seems not at all unreasonable that the jury should have found, not only that the defendants below were guilty of negligence, but that such