for some time, and that the barrels had become dry and incapable of holding water, and there was nothing in the evidence tending to show that the failure to have barrels of water in the gin room contributed to the loss, it appearing that no one was present at the time of the fire.

In Cady v. Imperial Ins. Co. (1873) 4 Cliff. 203, Fed. Cas. No. 2,283, it was held that a clause stipulating that there should be a good supply of water casks and buckets in each room was not a warranty, and was satisfied by a substantial compliance; and that the policy was not avoided, although the casks were not, in some instances, located in the room itself, but situated in an entry connected with the room, and leading out of it.

And in Sierra Mill. Smelting & Min. Co. v. Hartford F. Ins. Co. (1888) 76 Cal. 235, 18 Pac. 267, a finding that there was no violation of a warranty to keep water on top of a sawmill was held justified, the court stating that there was evidence that a tank about 2 feet deep and 3 feet square was located on the roof, but below the apex thereof; that it was fed by a small flume carrying water, and further stating that there was no place on the roof prescribed under the contract as being the particular place where the supply was to be located, and that no specific amount of water was mentioned as being necessary to be kept.

In Daniels v. Hudson River F. Ins. Co. (1853) 12 Cush. (Mass.) 416, 59 Am. Dec. 192, where there was a representation and stipulation that a water cask should be kept in each room, it was held that if the plaintiff established the rule that such water casks should be kept full, and employed servants to execute such

rule, and, through their negligence, the casks were not full, this negligence would not avoid the policy; the court stating that it was a well-settled principle in the law of fire insurance that the negligence of subordinates, many of whom must be employed without much knowledge of them by the employers, is one of the perils insured against.

And in the Daniels Case, where the application contained a question as to whether there were casks "in each loft, constantly supplied with water," which was answered, “There is in each room," it was held that the word "room" was used without any very precise or definite meaning, and that there was sufficient uncertainty and ambiguity in the representation to warrant the introduction of evidence of a usage among manufacturers to call the whole of a loft or storage used for a particular department one room; and it was held a question of fact for the jury to decide whether, according to the true meaning of the language used, the representation was substantially true when made, and substantially complied with afterwards. And it was held that if there was a general use of the word "room" among manufacturers to mean the whole of a loft or storage, such use must be taken into consideration in an action on the policy, although this use was not known and general among insurers; the court stating that if the language of this representation was understood in the particular manner by manufacturers, according to which understanding the representation was true, the legal presumption was that it was so understood by the insurers in their contract.

See also Cady v. Imperial Ins. Co. (1873) 4 Cliff. 203, Fed. Cas. No. 2,283, set out supra, I. J. T. W.

horizontal square-edged wooden casing from 4 to 5 inches in width, just below the floor level of the second floor. The casing projected into the elevator shaft at least seven eighths of an inch. According to some of the witnesses, it projected into the shaft for a distance of 1 inches. The same condition existed beneath all of the upper floor levels. The clearance between the edge of the elevator and the projection is given by one witness as one half of an inch. Another witness testified that there were 1 inches of clearance. The elevator had no door to inclose it. So, accepting any of the distances given as correct, it is obvious that the projection beneath the floor landings made a condition of danger to one ascending in the elevator, whose foot, or arm, or clothing might protrude over the edge of the elevator floor. That this danThat this dangerous construction could have been easily obviated by making the door casings flush with the wall of the shaft, or by placing bevel boards beneath the horizontal part of the projections so that an object extending over the floor of the elevator would be pushed back into the elevator when it came in contact with the bevel board, appears from the testimony.

On this phase of the case the court instructed as follows:

"The jury is instructed that at the time the decedent, A. C. Webb, sustained the injury described in plaintiff's complaint, defendant was a common carrier of passengers, and as such, in the maintenance and inspection of its elevator and elevator shaft and in its operation of said elevator at said time, was bound to use the utmost care and diligence for the safety of its passengers therein, and was and is liable for any injury to a passenger occasioned by its slightest negligence against which human prudence and foresight should have guarded.

"The jury is instructed that a passenger elevator is a dangerous instrumentality unless properly constructed and managed, and that there is no employment where the

law demands a higher degree of care and diligence than in the construction and operation of such elevators.

"The jury is instructed that the operator of a passenger elevator is bound to avail himself of such new inventions and improvements known to him, which will contribute materially to the safety of his passengers, whenever the ability of such improvements has been thoroughly tested and demonstrated, and their adoption is within his power, so as to be reasonably practicable.

"Applying this rule of law to the case, the jury is further instructed that if it believes from all the evidence in the case that defendant knew, or reasonably should have known, before the alleged injury to Alonzo C. Webb, that the squareedged horizontal projection immediately below each floor level in the elevator shaft, if such condition then existed, should be so beveled as to materially guard the safety of the feet of passengers therein, and having time and failing so to do, and such failure being the proximate cause of the alleged injury to said A. C. Webb, then, the jury so believing, it should find in favor of plaintiff upon such issue."

struction.

These instructions were not objected to, and they correctly declare the law applicable Elevatorto the facts estab- negligencelished by the testi- unsafe con9 R. C. L. mony. 1237, 1238; Webb, Elevators, 2d ed. pp. 4-7, and cases cited; Treadwell v. Whittier, 80 Cal. 574, 5 L.R.A. 498, 13 Am. St. Rep. 175, 22 Pac. 266. The jury were justified under the instructions of the court in inferring negligence on the part of the appellant, and their verdict cannot be disturbed on this ground.

Appellant contends that respondent's intestate was guilty of contributory negligence which was the proximate cause of his injuries, and that the trial court erred in denying its motion for a nonsuit on this ground. Whenever the question of contributory negligence arises "upon a state of facts in regard to

Trial-question for jury-con

gence.

P. R. Co. 14 Nev. 351; Weck v. Reno Traction Co. 38 Nev. 285, 149 Pac. 65; Crosman v. Southern P. Co. 44 Nev. 286, 194 Pac. 839.

In Konig v. Nevada-CaliforniaOregon R. Co. 36 Nev. 209, 135 Pac. 151, this court said: "It is only where the plaintiff's case conclusively discloses negligence on his part that such disclosure may be taken advantage of by defendant in authorizing the court to advise a verdict for him. If, however, the evidence only tends to show, or only raises an inference of contributory negligence, the question should properly go to the jury to be determined like any other question of fact. The mere suspicion of negligence arising from the plaintiff's case will not warrant the court in taking such action. On the contrary, the inference of negligence on the part of the plaintiff must be so strong as to be unavoidable and conclusive. Where some evidence disclosed during the plaintiff's case merely tends toward the conclusion of contributory negligence, but lacks that cogency to make it conclusive, then it merely raises a question for the jury, and should be submitted to the jury."

The only fact established by the evidence from which an inference of contributory negligence can be drawn is that the injured man's foot extended over the edge of the floor of the elevator. How it came to be in that position does not appear from respondent's evidence, nor is it shown by appellant's evidence. The operator was the only person in the car besides Webb, at the time the accident happened. When Webb entered the elevator and took a position about 2 feet from the south side of the elevator, the operator went to the control box and started and was operating the car. His back was turned towards

Webb, and he did not see him again until his attention was attracted by the injured man's screams. Mr. Worron, a witness for respondent, gave testimony to the effect that Webb was seated in a chair in the elevator when his foot was caught. He testified, in substance, that he was on the second floor near the elevator shaft when his attention was directed to the elevator by the cries of the injured man; that the elevator was then about on a level with the second floor; that the elevator went on up out of sight, and directly returned to the second floor, where the injured man was taken from the elevator; that Webb was seated on a chair or stool on the south side of the elevator about 2 feet from the opening in the elevator when the attention of the witness was first directed to it, and was seated in the same position with his left foot outside of the elevator when it returned to the second floor. The testimony of this witness as to the elevator going to the third floor and beyond, and as to Webb being seated in a chair in the elevator when he sustained his injuries, is in conflict with the testimony of the operator in this regard, and, of course, presented a question for the jury. But the point we wish to emphasize is that it does not affirmatively appear from the evidence that Webb's carelessness contributed to his injuries. The fact that a portion of his foot extended over the edge of the elevator floor is not incompatible with respondent's claim that he was Evidence-of exercising ordinary negligence care at the time of foot projecting beyond elevator. the accident. It is merely susceptible of an inference of carelessness. There is no direct evidence on this point. And in this connection it must be remembered that contributory negligence is an affirmative defense, Pleadingwhich must ordina- contributory negligence. rily be specially pleaded and proved by a preponderance of the evidence. The jury, therefore, had a right to consider