Mr. Presiding Justice Windes
delivered the opinion of the court.
The first question is as to whether the demurrer to the plea of the statute of limitations was properly sustained. The first count of the original declaration fails to state any duty of the Crane Elevator Company to appellee, or any facts from which it can be said the Elevator Company owed any duty to appellee; nor does it state any negligence on the part of the Elevator Company. It fails to state that the Elevator Company used or operated the elevator. It therefore does not state a cause of action against the Crane Elevator Company. The second count fails to state facts which in law show any negligence of the Elevator Company of which the appellee can avail himself. It alleges that when the injury occurred, the appellants other than the Elevator Company, were using and operating the elevator, and the only negligence charged as against the Elevator Company in this count is the “ negligence with which said elevator was built and constructed.” This can not avail appellee as against the Elevator Company. There is no fact alleged showing privity between the appellee and the Elevator Company, without which there can be no liability of the Elevator Company in this case to appellee for alleged negligent construction of the elevator. The duty of the Elevator Company was to Field, not to the appellee, so far as concerns negligent construction. Wharton on Negli., Sec. 438; Curtin v. Somerset, 140 Pa. St. 76, and cases cited; Savings Bank v. Ward, 100 U. S. 195, 207; Ziemann v. Kieckhefer Elev. Mfg. Co., 63 N. W. (Wis.) 1021; Winterbottom v. Wright, 10 Mees. & W. 115; Losee v. Clute, 51 N. Y. 494.
Mr. Wharton states the reason for the rule that a contractor is not liable to third parties for negligence, sometimes given, is “ that otherwise there would be no end to suits; but a better ground is that there is no causal connecÉHMÉÉetween the injury and the contractor’s negligence.” R^me Curtin case, supra, the coiyt held that a contractor Avho erected a hotel building Avas not liable to a guest of the hotel for injuries received because of improper material used and defective construction of the hotel, and said: If a contractor Avho erects a house, who builds a bridge or performs any other work—a manufacturer who constructs a boiler, piece of machinery, or a steamship, owes a duty to the Avhole world that his work or his machine or his steamship shall contain no hidden defect, it is difficult to measure the extent of his responsibility, and no prudent man would engage in such occupations upon such conditions. It is safer and wiser to confine such liabilities to the parties immediately concerned.”
In the Zieman case, supra, the court held that an elevator manufacturing corporation was not liable to an employe of its vendee of an elevator Avho was injured by reason of a defect in the elevator AAdiile it was on trial and under the supervision of the vendor, the employe being engaged in Avork o£ his employer near the elevator when he was injured. The court say: “ If this action could be maintained upon the allegations of negligent and improper construction of the elevator, it would follow that any one actually using it and receiving injury in consequence—-a much stronger case than the present—might maintain an action against the manufacturer. This would be to introduce a rule which, Ave think, is not sustained by authority, and might lead to serious consequences.” The same principle is recognized in Gibson v. Leonard, 143 Ill. 189, and the general rule that the contractor is not liable to third persons for negligent construction is stated to be Avell established in Empire Machinery Co. v. Brady, 164 Ill. 58.
Both these counts, then, shoAving no cause of action against the Crane Elevator Company, the additional counts can not stand as against the plea of the statute of limitations, they being filed more than two years after the plaintiff’s cause of action accrued. There can be no re-statement of a cause of action by the additional counts, as no cause of action was stated as against the Elevator Company in the. original counts. Eylenfeldt v. Ill. Steel Co., 165 Ill. 189.
We have considered the contention of appellee’s counsel, that the plea of the statute of limitations was improvidently filed, and that the Elevator Company waived the time of filing the additional counts, and are of opinion it is not tenable. It was therefore error to sustain the demurrer to the plea of the statute of limitations of the Crane Elevator Company to the three additional counts.
But if this second count was good as to the Elevator Companjq it proceeds upon the theory of joint operation of the elevator by the other appellants and the Elevator Company, and the proof fails to support this allegation. For this reason, the judgment being against the Elevator Company and all the other defendants, the judgment must be reversed. If it is erroneous as to one, it is erroneous as to all. W. C. Street R. R. Co. v. Morrison & Co., 160 Ill. 295, and cases cited; Met. W. S. El’d R. R. Co. v. Strasburg, 19 Ill. App. 136.
The contention is made on behalf of Field & Co. that they can not be held for the injury, as they claim the evidence shows that the immediate cause of appellee’s injury was a defect in the flange, which was hidden and could not have been discovered by the exercise of the highest degree of care on their part; that the elevator was built by the Elevator Company, an independent and competent. contractor, for "Marshall Field; that it had been completed, accepted and in use by Field & Co. long before the accident.
In so far as Marshall Field may be liable as owner, this may be conceded; but it can not be said, as matter of law, under the evidence, that the immediate cause of appellee’s injury was a defect in the flange. That was a question for the jury (Pullman Palace Car Co. v. Laack, 143 Ill. 259, and cases cited), and the evidence tends to show that the safety appliances which the Elevator Company guaranteed by its contract with Field were such that it was impossible for the car to fall from any cause, failed to operate; that this was the cause of appellee’s injury; that Field & Co. had notice that the safety appliances were a new design, and there is no evidence that there was any test made of the safety appliances after the elevator was put into service, some three months before the accident. There is expert evidence to'the effect that a test should be made every other week of the safety appliances to ascertain whether they were in good working order.
There is also evidence which tends to show that the hydraulic tests (1,500 pounds pressure) to which the flange was subjected were calculated to strain the metal at weak points and not develop the weakness at once; that such tests should be, and in 1893 usually were, one-half more than the intended pressure to be carried (in this case 1,125 pounds), then leave the pressure on for a number of hours and rai and hammer on the metal to see that no part gives out.
In Hartford Dep. Co. v. Sollitt, 172 Ill. 225, the Supreme Court held that persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those operating elevators for raising and lowering persons from one floor to another in buildings.
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Mr. Presiding Justice Windes
delivered the opinion of the court.
The first question is as to whether the demurrer to the plea of the statute of limitations was properly sustained. The first count of the original declaration fails to state any duty of the Crane Elevator Company to appellee, or any facts from which it can be said the Elevator Company owed any duty to appellee; nor does it state any negligence on the part of the Elevator Company. It fails to state that the Elevator Company used or operated the elevator. It therefore does not state a cause of action against the Crane Elevator Company. The second count fails to state facts which in law show any negligence of the Elevator Company of which the appellee can avail himself. It alleges that when the injury occurred, the appellants other than the Elevator Company, were using and operating the elevator, and the only negligence charged as against the Elevator Company in this count is the “ negligence with which said elevator was built and constructed.” This can not avail appellee as against the Elevator Company. There is no fact alleged showing privity between the appellee and the Elevator Company, without which there can be no liability of the Elevator Company in this case to appellee for alleged negligent construction of the elevator. The duty of the Elevator Company was to Field, not to the appellee, so far as concerns negligent construction. Wharton on Negli., Sec. 438; Curtin v. Somerset, 140 Pa. St. 76, and cases cited; Savings Bank v. Ward, 100 U. S. 195, 207; Ziemann v. Kieckhefer Elev. Mfg. Co., 63 N. W. (Wis.) 1021; Winterbottom v. Wright, 10 Mees. & W. 115; Losee v. Clute, 51 N. Y. 494.
Mr. Wharton states the reason for the rule that a contractor is not liable to third parties for negligence, sometimes given, is “ that otherwise there would be no end to suits; but a better ground is that there is no causal connecÉHMÉÉetween the injury and the contractor’s negligence.” R^me Curtin case, supra, the coiyt held that a contractor Avho erected a hotel building Avas not liable to a guest of the hotel for injuries received because of improper material used and defective construction of the hotel, and said: If a contractor Avho erects a house, who builds a bridge or performs any other work—a manufacturer who constructs a boiler, piece of machinery, or a steamship, owes a duty to the Avhole world that his work or his machine or his steamship shall contain no hidden defect, it is difficult to measure the extent of his responsibility, and no prudent man would engage in such occupations upon such conditions. It is safer and wiser to confine such liabilities to the parties immediately concerned.”
In the Zieman case, supra, the court held that an elevator manufacturing corporation was not liable to an employe of its vendee of an elevator Avho was injured by reason of a defect in the elevator AAdiile it was on trial and under the supervision of the vendor, the employe being engaged in Avork o£ his employer near the elevator when he was injured. The court say: “ If this action could be maintained upon the allegations of negligent and improper construction of the elevator, it would follow that any one actually using it and receiving injury in consequence—-a much stronger case than the present—might maintain an action against the manufacturer. This would be to introduce a rule which, Ave think, is not sustained by authority, and might lead to serious consequences.” The same principle is recognized in Gibson v. Leonard, 143 Ill. 189, and the general rule that the contractor is not liable to third persons for negligent construction is stated to be Avell established in Empire Machinery Co. v. Brady, 164 Ill. 58.
Both these counts, then, shoAving no cause of action against the Crane Elevator Company, the additional counts can not stand as against the plea of the statute of limitations, they being filed more than two years after the plaintiff’s cause of action accrued. There can be no re-statement of a cause of action by the additional counts, as no cause of action was stated as against the Elevator Company in the. original counts. Eylenfeldt v. Ill. Steel Co., 165 Ill. 189.
We have considered the contention of appellee’s counsel, that the plea of the statute of limitations was improvidently filed, and that the Elevator Company waived the time of filing the additional counts, and are of opinion it is not tenable. It was therefore error to sustain the demurrer to the plea of the statute of limitations of the Crane Elevator Company to the three additional counts.
But if this second count was good as to the Elevator Companjq it proceeds upon the theory of joint operation of the elevator by the other appellants and the Elevator Company, and the proof fails to support this allegation. For this reason, the judgment being against the Elevator Company and all the other defendants, the judgment must be reversed. If it is erroneous as to one, it is erroneous as to all. W. C. Street R. R. Co. v. Morrison & Co., 160 Ill. 295, and cases cited; Met. W. S. El’d R. R. Co. v. Strasburg, 19 Ill. App. 136.
The contention is made on behalf of Field & Co. that they can not be held for the injury, as they claim the evidence shows that the immediate cause of appellee’s injury was a defect in the flange, which was hidden and could not have been discovered by the exercise of the highest degree of care on their part; that the elevator was built by the Elevator Company, an independent and competent. contractor, for "Marshall Field; that it had been completed, accepted and in use by Field & Co. long before the accident.
In so far as Marshall Field may be liable as owner, this may be conceded; but it can not be said, as matter of law, under the evidence, that the immediate cause of appellee’s injury was a defect in the flange. That was a question for the jury (Pullman Palace Car Co. v. Laack, 143 Ill. 259, and cases cited), and the evidence tends to show that the safety appliances which the Elevator Company guaranteed by its contract with Field were such that it was impossible for the car to fall from any cause, failed to operate; that this was the cause of appellee’s injury; that Field & Co. had notice that the safety appliances were a new design, and there is no evidence that there was any test made of the safety appliances after the elevator was put into service, some three months before the accident. There is expert evidence to'the effect that a test should be made every other week of the safety appliances to ascertain whether they were in good working order.
There is also evidence which tends to show that the hydraulic tests (1,500 pounds pressure) to which the flange was subjected were calculated to strain the metal at weak points and not develop the weakness at once; that such tests should be, and in 1893 usually were, one-half more than the intended pressure to be carried (in this case 1,125 pounds), then leave the pressure on for a number of hours and rai and hammer on the metal to see that no part gives out.
In Hartford Dep. Co. v. Sollitt, 172 Ill. 225, the Supreme Court held that persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those operating elevators for raising and lowering persons from one floor to another in buildings. These rules require that the carrier should “ do all that human care, vigilance and foresight can reasonably do under the circumstances, and in view of the character of the mode of conveyance adopted, reasonably to guard against accidents and consequential injuries,” and if they do not do so they are responsible for all consequences which flow from such neglect. C. & A. R. R. Co. v. Byrum, 153 Ill. 135; C. & A. R. R. Co. v. Arnol, 144 Ill. 272.
It may, therefore, well be said, in view of the law and this evidence, there was a question for the jury as to whether Field & Co., in relying upon the tests made by the Elevator Company as to the sufficiency of the flange and the safety appliances, did all that human care, vigilance and foresight could reasonably do under the circumstances, in view of the mode of conveyance, reasonably to guard against accidents. Fair-minded and honest men might reasonably differ on this matter.
From what has been said with regard to the sufficiency of the two counts in the original declaration as to the Elevator Company, and the evidence as to the joint'operation by the Elevator Company and the other defendants of the elevator, it follows that the third instruction for the plaintiff was erroneous, because it allows a verdict on either count of the declaration and on the theory of joint operation, of which there was no evidence. The latter part of the instruction also tells the jury, in effect, that all defendants are liable for plaintiff’s injuries, without reference to any act of negligence.
The fourth instruction for appellee is improper, because it also proceeds upon the theory of joint operation of the elevator by the Elevator Company and the other defendants, and also because, while all the counts of the declaration allege specific grounds of negligence, this instruction says that when the plaintiff has made & prima facie case, “ the burden of proof is upon the defendants to show, if they can, by a preponderance of the evidence, that said accident was without any fault or negligence on their part.”
The plaintiff’s right to recover must be confined to the grounds stated in his declaration, but this instruction only requires plaintiff to make out a prima facie case, and then says, in effect, defendants must meet all possible cases which would entitle the plaintiff to recover without reference to whether he alleged or proved them. This is not the law. C. & A. R. R. Co. v. Rayburn, 153 Ill. 290; W. C. St. R. R. Co. v. Martin, 154 Ill. 523; C., B. & Q. R. R. Co. v. Levy, 160 Ill. 385, and cases cited.
" The point is not made, but we think that as there may be another trial of this case we should state that there is a question as to whether this instruction is erroneous because it requires the defendants, after the plaintiff has made out a prima, fade case, to prove their defense by a preponderance of the evidence. It does not appear to have been directly decided in this State. In civil cases, unless the state of the pleadings require it, as, if the defendant has pleaded payment, release, set-off or justification, the defense only has to meet the plaintiff’s case, not by a preponderance of evidence, but by evidence which will evenly balance the plaintiff’s evidence. The general rule is that when the plaintiff makes affirmative allegations, as in this case, of negligence of the defendants, and the defendants plead the general issue, the burden is on the plaintiff all through the case to establish his case—that is, prove the specific negligence alleged—by a preponderance of the evidence, and he .can not recover if the defendants’ evidence is such as to evenly balance that of the plaintiff. 1 Jones on Evidence, Secs. 174 to 176, 181 and 182; 1 Wharton on Evidence, Sec. 357; 5 Amer. & Eng. Ency. of Law, 22; Heinemann v. Heard, 62 N. Y. 455; Scott v. Wood, 81 Calif. 400.
In speaking of the burden of proof being shifted when the plaintiff has made a prima facie case, Mr. Jones (1 Jones on Evid., Sec. 175), says : “All that is meant by this is, that there is a necessity of evidence to answer the prima facie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue; and this burden remains throughout the trial.”
In the Scott case, supra, the Supreme Court of California says : “ It is by no means safe to infer that because a party has the burden of meeting a prima facie case, therefore he must have a preponderance of evidence. It may be sufficient for him to produce just enough evidence to counterbalance the evidence adduced against him.” And further says, in speaking of the burden of proof being shifted to the defendant and back again to the plaintiff : “ The two burdens are distinct things. One may shift back and forth with the ebb and flow of the testimony. The other remains with the party upon whom it is cast by the pleadings—that is to say, with the party who has the affirmative of the issue.”
We are inclined to the view that the instruction would be a better statement of the law, in this respect, if the words “ a preponderance of ” were omitted.
The sixth instruction for the plaintiff has the same element last referred to in the fourth, and besides requires the defendants to.prove “ that the accident resulted from a cause which could not have been foreseen or guarded against by the highest degree of human care, skill and forethought practicable.”
As we have seen, the rule is that the carrier must exercise the highest degree of human care, vigilance and foresight which is reasonable under the circumstances and in view of the character of the mode of conveyance adopted, reasonably to guard against accidents, etc. R. R. Co. v. Byrum, 153 Ill. 135.
To the same effect are R. R. Co. v. Blumenthal, 160 Ill. 48; R. R. Co. v. Pillsbury, 123 Ill. 9-21; R. R. Co. v. Kerr, 148 Ill. 605, and cases cited; Penn. Co. v. McCaffrey, 173 Ill. 173. In the Kerr case a similar instruction, which omitted the modification of the phrase “ practical operation of its road ” by the word reasonable, was condemned, and the court say: “ A railroad company, doing all that human care, vigilance and foresight can do, consistently with the practical operation of its road, in providing a safe road-bed, track, etc., could be required to make it of solid masonry, with ties of iron or stone, but ordinarily it would be unreasonable to require it to do so.”
We think this instruction should have been modified, at least by the insertion of the word reasonably before the word practicable.
The plaintiff’s eighth instruction in the first part states the rule as to the care to be exercised by the carrier properly, but in the latter part of the instruction the court tells the jury that the earner undertakes to exercise “the highest degree of care to secure the safety of passengers, and as such is responsible for the slightest negligence resulting in injury to the passenger.” This we think was contradictory, and calculated to mislead the jury. The highest degree of care, without any qualification, may be very different from the highest degree of care which is reasonable under, the circumstances and in view of the character of the conveyance.
We see no objection to the plain tiff’,s ninth instruction in so far as it relates to the defendants, other than the Elevator Company, as to which it was improper because the evidence did not justify the instruction.
The plaintiff’s tenth instruction was proper. The evidence to which the instruction refers would clearly have been improper if not limited to the specific purpose for which it was offered.
[Numerous instructions asked for defendants were refused, and some modified, and given as modified, by the court, all of which we have considered, and find no reversible error in any of the rulings of the court as to such instructions. It seems to' us unnecessary to discuss them in detail.
Numerous objections as to the admission and exclusion of evidence are made, all of which we have considered, and while we are inclined to think that in none of the court’s rulings on the evidence is there reversible error, it is not important now to pass on the questions discussed, for if there was error it may be avoided in another trial.
It is also claimed that the judgment is excessive, and that it was the result of the misconduct of counsel for plaintiff during the trial and in the argument to the jury. The conduct of plaintiff’s counsel in insinuating that one of defendants’ witnesses was a spy and an informer was highly improper and should have been rebuked by the court. Also the statements of counsel in argument, not supported by the evidence, were grossly improper, calculated to prejudice the jury, and should have been promptly reprimanded by the court.
It is, however, unnecessary in this case for us to consider whether the misconduct of counsel was, under all the evidence, sufficient to justify a reversal of the judgment for that reason. Such a question should not arise on another trial.
For the errors in sustaining the demurrer to the plea of the statute of limitations, in not directing a verdict of not guilty as to the Crane Elevator Company, and in the giving of- certain instructions for plaintiff above referred to, the judgment is reversed and the cause is remanded.