Negligence. If a workman in the employ of a contractor, who is doing the mason work of a building in process of construction, is told by a foreman in the employment of a roofer, who is putting a tar and gravel roof on the building, that he can use "a little roofer's derrick," a "pretty simple appliance," which the foreman has put on the roof in place of a heavy mason's derrick that was in the way of the roofers, and the workman in using the derrick is injured by reason of its wheel jumping from a large hook, which it would not have done if it had been secured by lashing or "mousing," he cannot maintain an action against the roofer for his injuries, as he was not invited to use the derrick but simply was permitted to do so, and the absence of the "mousing" was easy to see, so that the workman as a licensee took the risk of using the derrick as it was and the roofer failed in no duty toward him as such licensee.
HAMMOND, J.
Under the circumstances we do not think the evidence would warrant a finding that there was any invitation to the plaintiff to use the derrick. The time had come to take down the heavy derrick which had been used by the employees of Rand, for whom the plaintiff was working. It was in the way of the roofers who were about to go to work. The derrick was a "pretty simple appliance," "a little roofer's derrick." The plaintiff was not invited to use it. He was simply permitted to use it as it was. The absence of the "mousing" was easily seen, and the plaintiff took his risk of using it as it was. In the opinion of the majority of the court the defendant failed in no duty owed him as a licensee.
Exceptions overruled.