OPINION
ARCHBALD, Justice pro tem.
Plaintiff was an employee of a firm which occupied a portion of the sixth floor of a building owned by defendant. On March 21, 1927, coming into the building on his way to work, he found, as he said, the elevator doors open, and, the light being dim, he stepped through the doors and fell into the basement, injuring himself. His employer was insured under the Workmen’s Compensation Insurance and Safety Act (St.1917, p. 831, as amended) by Hartford Accident & Indemnity Company, and an award having been made by the Industrial Accident Commission of the state in favor of the employee and against said insurance carrier for the injuries thus sustained, the latter intervened in the instant action praying that it might have a first lien on any recovery by plaintiff for the sums expended by it under said award. The case was tried before a jury which returned a verdict in favor of plaintiff in the sum of $15,000, and from the judgment entered thereon defendant has appealed. No brief on appeal was filed by plaintiff, but the intervener has responded to appellant’s brief.
Appellant contends (1) that the court erred in giving an instruction involving the doctrine of res ipsa loquitur; (2) that no negligence whatever on the part of plaintiff was proved or shown; and (3) that the evidence shows that the proximate and only cause of the accident was either plaintiff’s own act in opening the doors or that of an interloper.
The amended complaint, and also in effect the complaint of intervener, alleges that on the day in question "the defendant so negligently and unlawfully maintained and conducted said elevator shaft and the doors thereof that said doors were permitted to be left open and said elevator way or shaft to be darkened and unguarded while the elevator car was at some point above said ground floor, and negligently failed to have said passageway or hallway and elevator shaft properly and sufficiently lighted, in consequence whereof plaintiff, while lawfully upon said premises and properly on said ground floor in said building, *** believing that the elevator car was there in said shaft on said ground floor in waiting and in readiness to receive passengers for carriage and induced to so believe by the fact that said doors were standing open, as aforesaid, and believing that by entering said doors he would be stepping into the aforesaid elevator car, and it appearing to him in the uncertain and dim light of the hallway or passageway that the elevator was on said floor, he entered and passed part way through said doorway and doors, and the said elevator car not being in that portion of the shaft, but at some point above said ground floor at that time, without any fault on his part, the said plaintiff fell *** from the ground floor of said building to the lower floor or basement thereof," receiving the injuries of which he complains. As to who actually opened the elevator doors and failed to close them prior to the accident the evidence is silent. Plaintiff testified, in substance, that the elevator shaft was about 20 to 30 feet from the open entrance to the building, in a passageway about 4 feet wide, on the left side of which was a soft drink stand, and that about 5 feet from that "was the elevator on the left side"; that there was a chandelier about 5 feet from the entrance which was never lighted, "only at night"; that "over on the right side of the elevator they had a little bulb, and there was a staircase that would turn around to the left going up to the building. There would also be a light there"; that he arrived at about 7:30 a.m. on his way to work; that it was "rather a gloomy day. *** There was no lights whatsoever in the hallway; just the light coming from the street into that long hall"; that the elevator doors were open as he had seen them before, "and with that confidence *** I just walked straight in, because it was a common occurrence at times."
The instruction complained of reads as follows: "You are instructed that when a thing which causes an injury is shown to be under the management of the defendant and the situation is such that in the ordinary course of things does not happen if those who have its management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. In applying the above doctrine to this case you are instructed that if you find that the doors of the elevator on the first floor were open when the elevator cage was not there, and that that was such a thing as does not ordinarily happen if those who have the management thereof use proper care in the management thereof, it affords prima facie evidence of negligence, and would justify a verdict for the plaintiff if you believe from all the evidence that such negligence, if any, was the proximate cause of the accident, unless the evidence in the case negatives that prima facie presumption and establishes by a preponderance of the evidence that it was not the result of the negligence of the defendant, or unless you find that the plaintiff was guilty of some negligence which proximately contributed to the accident and his injuries."
It will be seen that the allegations of negligence in the complaint are in general terms and in effect charge that the doors were open due to the negligence of defendant, and that, due to the dim light, plaintiff did not discover the absence of the elevator until it was too late. The proximate cause of the injury was the open doors, and the dim lighting is only material in connection with such alleged negligence as a circumstance immediately connected with the happening of the accident and on the question of contributory negligence. In the case of McKeon v. Lissner, 193 Cal. 297, 223 P. 965, 968, cited by appellant, the only negligence charged was the failure of defendants "to keep said elevator and said apparatus for operating the same in order and repair." In addition to proving negligence as alleged, evidence to the effect that the hallway to the elevator was dark was introduced, and properly, the court held, because it was not only a part of the res gestae, but material to the issue of contributory negligence. Nevertheless, because the giving of instructions involving the doctrine of res ipsa loquitur in effect authorized the jury to return a verdict upon a claim of negligence of which they had no notice in the pleadings, the case was reversed. In the instant case the allegations of the complaint charge negligence in permitting the elevator doors to remain open without the elevator being there present, and in having the passageway dimly lighted at such time. The evidence itself leaves the question as to just how the doors were left open somewhat in doubt. It does show, however, that defendant corporation was in charge of the elevator at the time through its employee, who had taken the elevator up a few moments before the happening of the accident. It is true the latter testified on defense that he closed the doors before he ascended and that the elevator could only be operated with the shaft’s doors open by using an emergency button on the elevator which he says he did not use; yet the jury evidently did not accept his testimony. The elevator being at the time in charge of defendant and the accident one that in the ordinary course of things does not happen if the management uses proper care, and plaintiff having testified that the doors were open when he approached in the dimly lit passageway, and as they could not very well open of themselves, it would seem to be a proper case for such an instruction; and of course the presumption raised by the application of the instruction to the facts of the case makes a prima facie case (Michener v. Hutton, 203 Cal. 604, 265 P. 238, 240, 59 A.L.R. 480) on the issues raised by the complaint and answer.
Defendant attempted to meet such case by introducing evidence from which the jury could have inferred that plaintiff himself opened the doors. The court also instructed the jury that it could not base a verdict in favor of plaintiff "upon speculation, guesswork, or surmise," and that the law required plaintiff to prove defendant’s negligence as charged in the complaint. The court further instructed the jury that defendant would not be liable to plaintiff "if the plaintiff himself opened the doors" or if some stranger did so, that "defendant was not required to have and maintain lights in the hallway in question for the purpose of and sufficient to disclose pitfalls and dangers created and caused by some stranger or evildoer who was not an employee or agent of or acting for the defendant in creating the danger," and that it was a sufficient light "if it was such as is ordinarily maintained in such a hallway or entranceway by others exercising ordinary care in that regard." Appellant urges that the evidence of the defendant shows that no employee or agent of defendant could have left the doors open, and that they must have been opened by either the plaintiff or some interloper. We must admit that the cold record before us is quite persuasive, but "it is for the jury *** to determine from all the evidence in the case whether the defendant has successfully met and rebutted the prima facie case made out by the plaintiff in an action wherein the mere proof of the happening of the accident and the circumstances surrounding it give rise to an inference of negligence." Michener v. Hutton, supra. In the instant case the jury has not only made such determination, but the judge before whom the case was tried and who saw the witnesses on the stand has denied a motion for new trial. Having determined that there was no error in the giving of the instruction complained of, we can go no further without invading the province of the jury as well as that of the trial court.
Judgment affirmed.
We concur: CRAIG, Acting P.J.; IRA F. THOMPSON, J.
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