dissenting:
I cannot agree with the majority opinion on the subjects mentioned below.
1. The opinion states that “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 the 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 unsuccess*89ful * * 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 co 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 becalise the scaffold was a convenient and easy mode of access to the roof therefore the plaintiff was an invitee and was not a mere licensee in making such use thereof. The issue on this subject as made by the declaration was distinctly this: That the use of the scaffold in question was “reasonably necessary,” and that when the contract between the defendants, the general contractors, and the employers of the plaintiff, the subcontractors, was entered into, and under that contract, “it was contemplated by the parties that the servants of the” (subcontractors, amongst whom was the plaintiff) “who should be engaged in the performance of' (the) plumbing work, should use the scaffold * * * whenever it became reasonably necessary *90* * And it appears throughout the record that the case was tried and decided in the court below in favor of the plaintiff upon that issue.
Now the testimony aforesaid, quoted in the opinion of Judge Burks, was introduced by the plaintiff as tending to show the understanding aforesaid, and that the true construction of the contract between the general and subcontractors was that contended for by the plaintiff, when such contract is read in the light of the custom or usage mentioned. And, as I see it, this testimony was not introduced to prove a mere local custom or usage, but a general custom or usage on the subject, prevailing everywhere. And the testimony, in the absence of any objection thereto (and there was none), or of any evidence in any limiting its effect (of which there was none), was amply sufficient to prove such general custom or usage. Indeed this is in effect admitted in the concluding brief for the defendant, where it is said: “We submit that while there was evidence tending to show that it was customary for such employees to use such scaffolding when necessary, there was no proof at all of such custom attending mere convenence.”
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 *91scaffold 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 Co., 128 Mich. 653, 87 N. W. 888, 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 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 *92much 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 of 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 to 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 half-way 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 window 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 dotted lines (....) and the latter route by dash lines (........) on the following sketch:
*93It is true there was testimony for the defendants to the effect that the roof was not steeps—that a wheelbarrow *94could be rolled about on it; but the testimony for the plaintiff was to the contrary; and the plan of the roof in evidence refutes this contention of the defendants, as will appear from the following tracing from the elevation of such roof as shown from the front of the south gable (on which the location of the scaffold and route of the plaintiff aforesaid are also indicated by the solid and dash lines).
*93
*94An important question of fact in the case was whether the scaffold was on a level with the bottom sills of the dormer windows in the roof or higher up. This involved the question of whether if the plaintiff had gone through the dormer window, A, shown on the above sketch, he would have reached the roof on the same level as by the scaffold route, the testimony for the defendant being that the scaffold was on the same level as the sills of the south gable and the sills of the dormer windows. But the testimony for the plaintiff was in direct conflict with that of the defendants on that point, and was very positive and definite to the effect that the scaffold level was about half-way up on the south gable windows and that the level thereof when projected around on the roof was the same elevation above the sills of the dormer windows aforesaid.
And just here is the turning point in the case, as I see it, on the question of whether the route or way taken by the plaintiff was a reasonably necessary route to his place of work, namely,-the question whether the scaffold was or was not on the same level with the dormer window-sills, for, if so, as contended by the defendants, the plaintiff, by going through the dormer window, A, would have been, when emerging from that window and as he stood on its sill, at its south corner, within three or four feet from a point directly underneath the vent-pipe, and on the same level as he was when he stood on the scaffold at the cornice aforesaid, and he could have thus stepped to the board afore*95said on the roof leading to the vent-pipe and thence reached such pipe as readily as he could have done so by using, the scaffold route. But the testimony being in conflict, as aforesaid, on this point, this question of fact is concluded against the defendants by the finding of the court below; so that the fact must be regarded by us as being that by going through the window, A’ the plaintiff would not have been within reach of the vent-pipe or of the board on the roof beneath it, but would have had to climb the steep roof from the window-sill to a point within reach of the vent-pipe, and the plaintiff expressly testified on this subject as follows : “* * * when you got out there, the climbing of this steep part of the roof * * * you couldn’t make it up there.” (Record, p. 30.) And, indeed, the testimony for the defendants is not that the route through the dormer window, A, was that provided for the plaintiff, but the route through the dormer window B, as shown on the sketch above, which, as aforesaid, is a far more circuitous, a farther and more difficult and dangerous route on the roof than that by the scaffold, the latter requiring, as the plaintiff testified, only one step on the roof after reaching it from the scaffold (“just a step on the'roof',” p. 30, record), and that step being on the board aforesaid, which ran “across there from the mansard” (p. 36, record), by which he would have attained a point directly underneath his place of work and within reach of it by standing there on such board.
And, as tending to weaken the testimony for the defendant to the effect that the dormer window, B, route was provided by them as the route or way to the roof for all workmen on the building, it was shown by the testimony for the plaintiff that the plumbers did not use that way in putting the collars on the vent or stack-pipes, on the roof of the north gable (which preceded the work about which the plaintiff was engaged when the accident occurred), but *96used for that work a scaffold there erected. And further: one of the carpenters who had worked on the erection of the building, a witness for the defendants, disclosed in hiis testimony on cross examination that the scaffold which fell with the plaintiff had been theretofore frequently used by the carpenters, who were employees of the defendants, in descending from the roof. This witness testified that he himself had made such use of this scaffold “many a time.” If so used for descending from the roof, no good reason is perceived why the same use of it should not have been made as a reasonably necessary use (and doubtless was made of it), for ascending to the roof by all workmen on the building being at or near that end of the building and having occasion in the progress of their work to go upon the roof. And it would seem that the most ordinary forethought and prevision of the defendants would have led' them to anticipate this. Their consequent duty seems to me to have been plain, namely, to have exercised reasonable care that .the scaffold in question should have been so constructed as to have been reasonably safe for such use.
3. The testimony for the plaintiff is very explicit on the point as to what the .defect was in the construction of the scaffold which caused it to fall with the plaintiff. That was to the effect that it was not braced at all underneath the end of it which fell and that such bracing was reasonably necessary to support the scaffold for the use of it aforesaid by the plaintiff and other workmen as a means of ascent to the roof.
Such being the case as shown by the record, I feel that there was no error in the action of the trial judge in finding for the plaintiff, and I am unwilling to disturb his decision.