(126 Va. 72, 100 S E. 813.) burden upon the general contractor to hold him responsible for any use of the scaffold that was simply convenient to the plaintiff. In order for the plaintiff to occupy the position of invitee, it must appear that the use was not merely convenient, but reasonably necessary for the work to be done. If it could not If it could not have been reasonably anticipated that any such use would have been made of the scaffold, an invitation to make such use will not be implied. Mere convenience is not invitation. There are cases where convenient access is prepared for the use made of it, and in such case the preparation of the convenience amounts to an invitation. Such was the case of Nichols v. Washington, O. & W. R. Co. 83 Va. 99, 5 Am. St. Rep. 257, 5 S. E. 171. But this case does not belong to that class. The evidence before us shows that -right of subcontractor to use contractor's scaffold. perfectly safe, easy, and convenient access to the roof was afforded by two dormer windows, and Basham admitted on his cross-examination that such access would have placed him on the roof at a point not more than 3 or 4 feet from where he would have landed if he had succeeded in climbing over the eaves. It is true that he seeks to show that access by the dormer windows was not equally as convenient as by the scaffold, and that he "couldn't have gotten to the stack from there." But no amount of reasoning on the subject can overcome the force of his admission that access from the dormer window would have placed him within 3 feet of the very gable around which he was going to climb. There was no necessity, therefore, for his going upon the scaffold. It may have been a "convenient and easy" mode of access, but it was not reasonably necessary. But it was urged upon us both in the oral argument and in the brief that an invitation to use the scaffold was implied because such use was "an easy, convenient, and apparently safe way . to reach the roof," and it was insisted that subcontractors and their employees had the right to use the scaffolds "wherever and whenever it is necessary or convenient for them to do so." This right is insisted upon because "this scaffold afforded a convenient and easy method of reaching the roof." The trial court apparently took this view, but we cannot concur therein. The fact that access by way of the scaffold was "easy and convenient" did not warrant the implication of an invitation to so use it, when another means of access existed that was perfectly safe, easy, and convenient. No authority is cited for such a position, and we have not been able to find any. Indeed, the cases on somewhat similar questions seem to hold to the contrary. In Morrissey v. Boston & M. R. Co. (1918) 230 Mass. 171, 119 N. E. 675, the defendant contracted with several contractors for the erection of a building. The steelwork was to be done. by McClintock, Marshall, & Company, by whom the plaintiff was employed. The masonry and carpenter work was to be done by the Pike Company. Masons of the Pike Company left a ladder in place against one of the walls. The plaintiff was ordered by one of the foremen of McClintock, Marshall, & Company to go to the roof. He went by way of the ladder, and, getting on the ladder to return, he fell and was injured. Suit was brought against the Boston & Maine Company and the Pike Company. It was held that, while the ladder was placed where it was found by employees of the Pike Company, the evidence would not warrant a finding that the plaintiff was invited to use it. There were other ways of reaching the roof, and there was nothing to show that the ladder was placed there for the use of the employees of McClintock, Marshall, & Company, and hence the plaintiff did not use it by invitation of the Pike Company, but in using it was merely a licensee. In Smith v. Trimble (1901) 111 Ky. 861, 64 S. W. 915, a paper hanger was injured by stepping on to a balcony leading from an upper porch to an adjacent room, when the balcony fell, precipitating him to the ground. It was not necessary to use the balcony in going to or from the rooms upon which he was at work, but he did use it, without the knowledge or consent of the appellee, for his (appellant's) greater convenience in calling to a fellow workman below. The court said: "We are of opinion, and so hold, that appellant, while engaged in that work, in using such parts of appellee's premises as were reasonably necessary to enable him to do his work, was on the premises under the assurance in law by appellee that such parts so necessarily used were reasonably safe for the purposes of such use. But beyond that appellee owed appellant no duty, greater than to a stranger or trespasser. And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises, not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected, nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety." (Italics supplied.) In Hutchinson v. Cleveland Cliffs Iron Co. (1905) 141 Mich. 346, 104 N. W. 698, 19 Am. Neg. Rep. 28, the plaintiff was employed to cover pipes in the defendant's mill, and fell through an open, unguarded hatchway. His work did not call him nearer than within 20 to 40 feet of the hatchway, and he had to step over a steam pipe a foot high from the floor to get there. He had no call to go there and no invitation. His excuse for going there is that it was near night, and he wished to ask the foreman whether he should mix another quantity of plastic. He had seen the foreman go in a northwesterly direction from him and disappear from his sight around a still, a few feet from him. The mill was in operation and was lighted by electricity. Plaintiff testified that the light was dim. He started in the same direction and went around the still, ultimately walking into the trap, which he did not see or notice. The railing had been removed to facilitate the raising of the cumbrous machinery. The foreman was not produced as a witness. It was defendant's contention that it owed no duty to plaintiff, who had not been invited to enter that portion of the mill, and that he was guilty of contributory negligence. It was held that the defendant owed him no duty of protection. In Vaughan v. Transit Development Co. (1917) 222 N. Y. 79, 118 N. E. 219, the plaintiff was a motorman of the defendant company. He went into the toilet room of one of the company's power plants, as had been the custom of himself and other employees of the defendant for years, without objection from the defendant. Plumbers had been working just inside the door, and had left open a trapdoor in the floor. The plaintiff fell into the opening and was hurt. It was held that there could be no recovery as he was there as a licensee only, and that the defendant did not owe to him the duty of active vigilance to see that he was not injured while upon its premises for his own convenience. It was said that the plaintiff was there by permission for his own convenience, and his status was that of a bare licensee; that longcontinued acquiescence in such use did not become an invitation; and that the law does not so penalize good nature or indifference, nor does permission ripen into right. In Ryan v. Irons, 114 App. Div. 165, 99 N. Y. Supp. 590, a subcontractor for the plastering in a building in process of construction ordered his servant to plaster along a stairway, and he attempted to do so by standing on iron treads on the stairs, which treads were not built or intended to work on, but were to serve merely as a sheathing for stone treads. One of the treads gave way and the plaintiff was injured. It was held that the con (126 Va. 72, 100 S E. 813.) tractor was not liable, as the plaintiff was not there by invitation. In Holbrook v. Aldrich, 168 Mass. 15, 36 A.L.R. 493, 60 Am. St. Rep. 364, 46 N. E. 115, 1 Am. Neg. Rep. 451, the plaintiff, a child under seven years of age, entered defendant's shop with her father, who was going to make a purchase. She intended to buy some candy, but in the first place accompanied her father to a part of the shop some distance from the candy counter, and went to the coffee grinder. He let go her hand to get his money, and she went over to the coffee grinder, put her hand up the spout out of which the ground coffee came, hoping to get some whole kernels, and lost her fingers. It was held that the defendant was under no obligation to look out for the child, and to see that it did not injure itself by placing its fingers in the grinder. It was said that the plaintiff was not within the scope of the defendant's implied invitation, and therefore was not entitled to protection against possibility of harm to herself, and that, even if she had been buying coffee, the rule would have been the same; that the defendant's invitation in that case would have been for due care for the safety of those working in the neighborhood while simply moving about, but it would not have been to look out for or prevent wrongful acts by the plaintiff. Temptation is not always invitation. In Maguire v. Magee, 10 Sadler (Pa.) 171, 22 W. N. C. 159, 13 Atl. 551, Magee was contractor for all the walls, brickwork, etc., and had charge of the scaffolding. The residue of the work was done by the owners. All of the workmen, whether employed by Magee or the owners, used the scaffolds to pass from one part of the building to the other. Magee was a laborer employed by the owners of the building, and not by the contractor, and was engaged in painting the cribwork on the building. While working on the scaffold he stepped on what proved to be a trap in the scaffold, and fell and was injured. The court held that there could be no recovery against the contractor; that the plaintiff was a bare îicensee; that the scaffold was of temporary character; and that the defendant did not owe him the duty of having it in safe condition for his use. See also Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128; Kidder v. Sadler, 117 Me. 194, 103 Atl. 159; Blackstone v. Chelmsford Foundry Co. 170 Mass. 321, 49 N. E. 635; Eldred v. Mackie, 178 Mass. 1, 59 N. E. 673. The fact that the scaffold was re Evidencerepair of scaffold-effect. paired after the ac- An effort was made to prove an invitation to use the scaffold, which was on the south gable, by showing that a similar use had been made of the scaffold on the north gable, with the knowledge and acquiescence of the defendants. But the evidence shows that there were no dormer windows on the north side, from which access to the roof could be had with safety and convenience, as there were on the south side, and that if such use was made of the scaffold on the north gable it was a reasonably necessary use, and that the scaffold on that gable had stood the test. We are of opinion that Basham, the defendant in error, went upon the scaffold as licensee of the plaintiff in error, and not as an invitee, and hence is not entitled to recover of the plaintiffs in error for the injury sustained by him in the fall of the scaffold. The judgment of the Court of Law and Chancery will therefore be re Master and servant-lia bility of coninjury to subcontractor's tractor for servant. versed, and this court will enter judgment for the plaintiffs in error as that is the judgment which should have been entered by the trial court. Sims, J., dissenting: I cannot agree with the majority opinion on the subjects mentioned below. 1. The opinion states: "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. The attempted proof of a custom or usage of trade for subcontractors to use scaffolds left in place by the general contractor was unsuccessful. There follows the quotation of extracts from the testimony of two witnesses for the plaintiff, both members of the subcontracting firm which employed him; the first question and answer quoted being from the testimony of one of such witnesses, and the second question and answer quoted being from the other of such witnesses. Later on in the opinion it is said: "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." The opinion also states that the right of the plaintiff to use the scaffold is insisted upon, "because 'this scaffold afforded a convenient and easy mode of reaching the roof.' The trial court apparently took this view, but we cannot concur therein." It seems plain to me from the record and briefs in the case that the plaintiff did not seek recovery in the trial court, nor did the trial court rest its judgment, on the ground that, because the scaffold was a con- work, should use the scaffold Now the testimony aforesaid, (126 Va. 72, 100 S. E. 813.) As the case comes before us, therefore, with the decision of the trial court in favor of the plaintiff, we must, as I think, regard the fact as concluded that under the contract between the defendants and the employers of the plaintiff, when construed in the light of the general custom or usage of the trade on the subject, it was contemplated by the parties that the plaintiff should use the scaffold in question, as he did, for access to the roof of the building, if it was reasonably necessary for him so to do in the progress of his work thereon as a plumber. That is to say, it must be taken to have been within the contemplation of the defendants when they contracted for the plumbing work with the employers of the plaintiff, that the plaintiff would use the scaffold as he did, if it became reasonably necessary for him so to do in the progress of such work; and hence the plaintiff was in such case an invitee in such use of such scaffold, and the consequent duties of reasonable prevision and care to make the scaffold at that place reasonably safe for such use devolved upon the defendants. See note of Judge Freeman to Griffin v. Jackson Light & P. Co. 92 Am. St. Rep. 551, and there are many other authorities to the same effect. 2. I think, too, that the question whether the use made of the scaffold by the plaintiff, as a means of access to his place of work on the roof, was a reasonably necessary use, is concluded in favor of the plaintiff by the decision of the court below. On this question the evidence is very conflicting. The evidence for the defendants, it is true, is to the effect that such use was not reasonably necessary, but merely a convenient use. That evidence is, in substance, that there was only one way of ascent to the roof provided by the defendants for the carpenters employed by them, and also for the plumbers employed by the subcontractors, and that was (in so far as such way is material in 38 A.L.R.-26. this case) through one of the two dormer windows on the west side of the roof over the south gable of the building (such window being the window nearest the valley of the roof, the exit from this window being some distance to the north of the vent or stack pipe on which the plaintiff was about to place a collar, and lower down on the roof than such pipe), thence northward and away from such vent pipe to and up the valley of the roof, on a 2x12 timber with cleats on it, to the comb or ridge of the roof (a still greater distance away from the vent pipe), thence back, southward, on the comb or ridge of the roof until a point was reached immediately above the vent pipe, thence down the steep roof to the vent pipe,-a much longer and more difficult route to travel on the roof than the route by way of the scaffold where the plaintiff was traveling when the accident occurred; and one which, it is apparent from the plan of the building in evidence, was a more dangerous route to travel, and would have caused a considerable loss of time for the plaintiff to traverse, as compared with the route which he in fact took, namely, through a window on the east side of the south gable of the building on the scaffold standing there, which, according to the evidence for plaintiff, was on a level above the sills of the windows in such gable, to wit, about halfway up on or about the center of such windows, thence along the scaffold westwardly to the cornice on the western edge of the roof over the gable, thence, but a step, over the cornice on to a board that extended along the roof below but within reach of the vent or stack pipe, without having to climb up or down, or climb or slide down on the steep roof. The evidence in the record does not definitely locate the dormer windows or the vent pipe aforesaid on the roof, but sufficiently so to indicate approximately the respective routes on the roof aforesaid, the former route being indicated by |