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there is another safe, easy, and convenient way to reach the roof, cannot hold the general contractor liable for injuries caused by the collapse of the scaffold when put to such unintended use. [See note on this question beginning on page 403.]

Appeal, § 720effect of finding by judge on supporting evidence.

2. A finding by a trial judge sitting as a jury which is supported by evidence cannot be disturbed on appeal. [See 2 R. C. L. 207; 1 R. C. L. Supp. 444; 5 R. C. L. Supp. 82.] Appeal, § 720effect of finding by effect of finding by

court.

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5. Trespassers and mere licensees as a rule take the risk of the place as they find it.

[See 20 R. C. L. 57; 3 R. C. L. Supp. 1025; 4 R. C. L. Supp. 1330; 5 R. C. L. Supp. 1077.]

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Negligence, § 70 duty to habitual trespasser.

6. If a trespass is of such nature, and so frequent, as to charge the property owner with notice of it and of the danger likely to ensue to the trespasser, then he is chargeable with the duty of lookout for such trespasser, with such equipment and appliances as he is then using in the ordinary conduct of his business, but he does not owe the trespasser the duty of prevision or preparation.

Negligence, § 64 duty to licensee.

7. A property owner is charged with notice of the use of his property by a 'licensee, and with the duty of lookout, with such equipment as he then has in use, to avoid injury to him at the time and place where the presence of the licensee may reasonably be expected.

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Negligence, § 68 right of subcontractor to use contractor's scaffold. 12. Employees of a subcontractor for the plumbing of a building cannot claim an invitation to use a scaffold erected by the general contractor for placing windows in a gable, for the purpose of reaching the roof, although such use is easy and convenient, where there is another safe, convenient, and easy means of gaining access to the roof without the risk of instability of the scaffold.

Evidence, § 1299 repair of scaffold

-

effect.

13. That a scaffold used by a general contractor for placing windows in the gable of a building was repaired after its collapse in an attempt by a plumber to use it to reach the roof of the building is not evidence that it was left in place for the plumbers.

(Sims, J., dissents.)

(126 Va. 72, 100 S E. 813.)

ERROR to the Law and Chancery Court of the City of Roanoke to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries, alleged to have been caused by defendants' negligence. Reversed.

The facts are stated in the opinion of the court. Messrs. Staples & Cocke and Wilson & Manson for plaintiffs in error.

Messrs. Jackson & Henson and A. L. Hughson for defendant in error. Burks, J., delivered the opinion of the court:

John P. Pettyjohn & Sons contracted with the owners to build an addition to Hotel Roanoke, in the city of Roanoke. They employed

the Roanoke Sheet Metal Company,
as a subcontractor, to do the plumb-
ing on the addition, and the plain-
tiff was an employee of this subcon-
tractor. In the
In the course of the
construction of the building the de-
fendants, who were doing the car-
penter work themselves, erected a
scaffold along the face of the south
gable of the building for the purpose
of enabling their workmen to "case"
certain window frames in the gable
and to put the cornices thereon.
This work had been completed, but
the scaffold had not been taken
down. The work for which the scaf-
fold was primarily designed did not
require the workmen to go beyond
the west face of the last window on
the west from which the support for
the scaffold projected. The sup-
ports for the scaffold upon which
the floor of the scaffold rested are
spoken of by the witnesses as "pud-
locks." They were 2x12-inch joists,
set on edge, run out of the window,
and nailed at the other end to up-
rights run from the scaffold below.
The floor of the scaffold consisted of
loose boards laid on the pudlocks,
but not nailed thereto. This floor
extended a short distance beyond
the last pudlock. The carpenter work
on the gable had been completed,
and the scaffold had proved safe and
satisfactory for the purpose for
which it was constructed. The
plaintiff came out upon the scaffold
through the east window in the
face of the gable, walked the length
of the scaffold to the west end there-

of, and, while endeavoring to climb from the scaffold over the eaves on to the roof where his work was to be done, the scaffold gave way and precipitated him to the ground, causing a compound comminuted fracture of one leg and breaking one of his arms. For this injury, the present action was brought. The case was submitted to a jury; but, being unable to agree upon a verdict, they were discharged, and, by consent of the parties, it was then submitted to the judge of the trial court upon the evidence which had been adduced before the jury, and the trial court gave judgment for the plaintiff for the sum of $2,000.

The

The declaration alleged negligence on the part of the plaintiffs in er'ror: (1) In the use of defective materials; (2) in the failure to nail the floor of the scaffold; and (3) in the failure properly to construct and brace the scaffold. The first two of these allegations were abandoned at the hearing in this court. plaintiffs in error defended on the ground that they had not been guilty of any negligence in the construction of the scaffold, and, if they had, the defendant in error was a mere licensee, who took things as he found them, and they did not owe him the duty of making the scaffold safe for the use made of it by him.

The evidence is not clear as to how much of the scaffold fell down, and the parties advanced different theories as to how and why it fell. It is admitted, however, that it fell while the defendant in error was upon it in the discharge of his duties as a plumber. It was claimed by the defendant in error that the pudlock was not properly nailed and braced at the end next to the gable, while the plaintiffs in error claimed that the defendant in error fell from the roof to the scaffold, causing the latter to give way, or that he walked

out on the ends of the boards of the floor beyond the last pudlock, causing them to tilt and give way, or that his efforts to climb upon the roof from the scaffold caused a lateral pressure upon the scaffold, which the latter was not built to sustain. There was evidence tending to sustain each of these theories, and verdict in favor of either could not have been said to have been clearly against the evidence, or without evidence to sustain it. The trial court, sitting in place of a jury, found for the defendant in error, and its finding on this point cannot be disturbed. Anding by judge Generally, questions

Appeal-effect of

on supporting

evidence.

where of fact are submitted to the decision of the trial judge, without the intervention of the jury, his decision thereof is entitled to the same weight as the verdict of a jury. Delaware, L. & W. R. Co. v. Cotten, 113 Va. 563, 565, 75 S. E. 122. But

-effect of finding by court.

where the jury have been discharged because of their inability to agree upon a verdict, the decision of the trial judge upon

-submission to court after inability of jury to agree.

the same testimony which was submitted to the jury is not entitled to the same weight as it would otherwise have had.

The position of the plaintiff in error, however, is that Basham was a mere licensee, and assumed the risk of danger from the scaffold if it was defectively constructed. He was not a servant of Pettyjohn & Sons, but of a metal company by whom he was employed. As to

Pettyjohn & Sons he was a mere third person, and third persons can only come upon the permanent premises of another in the capacity of trespassers, licensees, or invitees. But there is a marked difference between the duties which the occupant of land owes to trespassers, licensees, and invitees, respectively.

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Trespassers and bare licensees, as a rule, take the risk of the place as they duty to tresfind it. Generally, passer and

Negligence

licensee.

the owner or occupant of the soil does not owe to a trespasser the duty of prevision, preparation, or lookout, but only the duty not to injure him intentionally or wantonly. If, however, the trespass is of such nature and so frequent as to charge the occupant with notice thereof, and of the danger likely to ensue to the trespasser, then the owner is chargeable with the duty of lookout trespasser, such equipment and appliances as he is then using in the ordinary conduct of his business; but he does not owe him the duty of prevision or preparation.

-duty to

for such habitual

with

trespasser.

In the case of licensees, the occupant is charged with knowledge of the use of his premises by the licensee, and, while not chargeable with the duty of prevision or preparation for the safety of the licensee, he is chargeable with the duty of lookout, with such equipment as he then has in use, to avoid injury to him at the time and place where the presence of the licensee may be reasonably expected. The duties of the occupant to the licensee and to the known frequent trespasser are the same, but the licensee is exempt from the responsibilities of a trespasser.

-duty to licensee.

The duties of the occupant to the invitee are entirely different. The latter comes by invitation, express or implied, and may reasonably expect to come with safety. The invitation, however, is rarely, if ever, unlimited, and especially when implied, but to the extent of the invitation the occupant owes to the invitee the duty of

-duty to

prevision, prepara- invitee. tion, and lookout.

He must use ordinary care to see that his premises are in a reasona

(126 Va. 72, 100 S E. 813.)

bly safe condition for the use of the invitee in the manner, and to the extent, that he has invited their use. The cases on the subject of the duty to trespassers, licensees, and invitees, respectively, are very numerous, and there is very little conflict in the holdings. We cite by way of illustration a few of them from this jurisdiction. Those from other jurisdictions are too numerous to cite, but will be found in any well-considered article on negligence. Many of them are referred to in the cases hereinafter cited. Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773; Lunsford v. Colonial Coal & Coke Co. 115 Va. 346, 79 S. E. 348; Walker v. Potomac, F. & P. R. Co. (Pannill v. Potomac, F. & P. R. Co.) 105 Va. 226, 4 L.R.A. (N.S.) 80, 115 Am. St. Rep. 871, 53 S. E. 113, 8 Ann. Cas. 862, 20 Am. Neg. Rep. 221; Norfolk & W. R. Co. v. De Board (Norfolk & W. R. Co. v. Wheeler) 91 Va. 700, 29 L.R.A. 825, 22 S. E. 514; Blankenship v. Chesapeake & O. R. Co. 94 Va. 449, 27 S. E. 20, 2 Am. Neg. Rep. 662; Chesapeake & O. R. Co. v. Rodgers, 100 Va. 324, 41 S. E. 732; Norfolk & W. R. Co. v. Wood, 99 Va. 156, 37 S. E. 846; Williamson v. Southern R. Co. 104 Va. 146, 70 L.R.A. 1007, 113 Am. St. Rep. 1032, 51 S. E. 195; Chesapeake & O. R. Co. v. Farrow, 106 Va. 137, 55 S. E. 569, 10 Ann. Cas. 12; Nichols v. Washington, O. & W. R. Co. 83 Va. 99, 5 Am. St. Rep. 257, 5 S. E. 171; Richmond & M. R. Co. v. Moore, 94 Va. 493, 37 L.R.A. 258, 27 S. E. 70, 2 Am. Neg. Rep. 473; Clark v. Fehlhaber, 106 Va. 803, 13 L.R.A. (N.S.) 442, 56 S. E. 817. We express no opinion as to the rights of house guests or the duties owing to them.

Upon the evidence, viewed from the standpoint of a demurrer to the evidence, we must hold that the scaffold was improperly and insecurely constructed for the use to which it was put by the plaintiff. If Basham was a mere licensee,

then he took upon himself the risk
of the scaffold as he
found it, and can- licensee on
not recover; but if scaffold.

-right of

he was an invitee, and the invitation
extended to that use of the scaffold,
then Pettyjohn & Sons are liable to
him for the injury sustained in
consequence of its fall. But it is
sometimes difficult to determine
whether the circumstances make a
case of invitation, in a technical
sense, or of mere license. Usually,
an invitation will be inferred where
the visit is of common interest or
mutual advantage to the parties,
while a license will -when invita-

be inferred where tion and
the object is the

license inferred.

mere pleasure or benefit of the visitor. Bennett v. Louisville & N. R. Co. 102 U. S. 577, 26 L. ed. 235, 7 Am. Neg. Cas. 349. The extent of the invitation also is not free from difficulty, where the invitation is implied.

In the case at bar, the evidence fails to show that the use of the scaffold by Basham for getting upon the roof was for the common interest and mutual benefit of both parties. It was built for use in doing work on the face of the gable, and was never intended to be used as a means of access to the roof. There were communicating doors. between all the rooms in this part of the building, and there were two dormer windows in the roof, affording safe, convenient, and easy access to the roof, at a point not more than 3 or 4 feet distant from the point at which the plaintiff would have landed if he had succeeded in his efforts to climb upon the roof from the scaffold. There was no work that the plaintiff could have done while standing on the scaffold. His work was on the roof, and not on the gable. If the scaffold was attractive, the plaintiff was not a child, and temptation was not invitation. If simply convenient, the use of it was as a licensee, and not as an invitee. The attempted proof of a custom or usage of trade for

subcontractors to use scaffolds left in place by the general contractors was unsuccessful even if it could have affected the result in a case where the use was not necessary. The only testimony on this subject was that of two members of the firm by which Basham was employed at the time of his injury. No foundation was laid as to either of them for proving a general custom or usage of trade, or any knowledge on the part of Pettyjohn & Sons of either a general or special usage in such case. The entire testimony of these witnesses on this subject was as follows:

D. P. McCann: Q. In a case of that kind, where a contractor has entered into a contract to do work or erect a building, and a subcontractor contracts with him to do the plumbing work or other portion of the work, I will ask you to state what is contemplated, in a situation of that sort, in reference to who shall furnish the scaffolding that is necessary for the employee of the subcontractor to do the work.

A. We always use the scaffolds for executing the work that were there.

D. E. Argenbright: Q. What is the custom and what is in contemplation by the parties as to the erection and use of scaffolding in cases of that kind?

(This question was objected to, but the objection was overruled. The examination then proceeded.)

A. Most of the work we do is specification work; we work under specifications.

Q. I asked you what is contemplated by the parties and what is the custom in regard to the use of the scaffolds?

A. The general contractors generally build the scaffolds or do the scaffolding work.

There was no other testimony on this subject. The fact that no exception was taken to this testimony simply affected its admissibility. It did not give it any greater weight

than it would have had if exception had been taken thereto.

This is far from proving a usage of trade to the extent and for the purpose of showing that the plaintiff was invited to use the scaffold, upon which he had no work to do, as a means of access to the roof. The language of this court in Southwest Virginia Mineral Co. v. Chase, 95 Va. 50, 57, 27 S. E. 829, is entirely apposite to the situation here. It is said there: "It has been doubted in some cases whether one witness is sufficient to prove a local custom or usage, but it seems now to be settled that a jury may be justified in by one witness, where it appears regarding the usage as established that he has full knowledge and long experience on the subject about which he speaks, and testifies explicitly to the duration and universality of the usage, and is not contradicted. Robinson v. United States, 13 Wall. 363, 20 L. ed. 653; Jones v. Hoey, 128 Mass. 585; 1 Greenl. Ev. § 260 and note. There is nothing in the record to show that this witness, who was an interested party, had any such knowledge or experience on the subject as would enable him to prove the custom. Neither does he prove, as the law requires, that it was an established usage or custom, general and notorious in that locality. Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593."

The evidence does not establish a custom or usage of business, general and notorious in that locality. As applied to the case at bar, the evidence does not establish anything more than a permissive use of the scaffold, a use as a licensee, or, if it can be so extended as to amount to an invitation, the invitation is limited to a use for work to be done while standing on the scaffold. If an invitation is to be implied at all, it is restricted to -implied invitasuch a use as was tion to use

reasonably necessa- scaffold. ry, and is not extended to uses not contemplated nor reasonably to be expected, though apparently convenient. It would place too great a

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