That duty has been said to be greater than that owed by a business invitor to his invitee. ( Hill v. Eaton Smith, 65 Cal.App.2d 11, 13 [ 149 P.2d 762].) "Since plaintiff was the employee of the subcontractor, his relationship to the contractor was that of a business visitor or invitee.
There is no doubt that with respect to the ship at large, plaintiff, as an employee of a subcontractor, was a business visitor and invitee of the general contractor, Amship. ( Dingman v. A.F. Mattock Co., 15 Cal.2d 622 [ 104 P.2d 26]; Hill v. Eaton Smith, 65 Cal.App.2d 11 [ 149 P.2d 762]; Leenders v. California Hawaiian etc. Corp., 59 Cal.App.2d 752 [ 139 P.2d 987].) Of course, the fact that plaintiff was an invitee of this defendant as to the use of the deck is not determinative of the question as to whether he was impliedly invited to use the scaffold. [3] A person may be an invitee as to one portion of the premises and a mere licensee or even a trespasser as to others, but the question as to the extent of the invitation is usually one for the jury and not for the court. [4] The true rule is stated in Gastine v. Ewing, 65 Cal.App.2d 131, at page 140 [ 150 P.2d 266], as follows: "It is true . . . that one may be an invitee to a certain portion of the premises and a licensee or trespasser as to other portions. . . . The question as to whether the invitation, express or implied, included that part of the premises where the injury occurred is generally not one of law.
[1] An employee of a subcontractor occupies the relationship of an invitee to the main contractor. ( Dingman v. A.F. MattockCo., 15 Cal.2d 622, 624 [ 104 P.2d 26]; Hill v. Eaton Smith, 65 Cal.App.2d 11, 13 [ 149 P.2d 762].) [2] "The applicable general principle is that the owner of the property, insofar as an invitee is concerned, is not an insurer of safety but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils.
And "the question whether the facts disclose a duty owed to the plaintiff by the defendant is in the first instance a question of law for the court." ( O'Keefe v. South End Rowing Club, 64 Cal.2d 729, 749 [ 51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]; Hill v. Eaton Smith, 65 Cal.App.2d 11, 14 [ 149 P.2d 762]; Carroll v. Central Counties Gas Co., 74 Cal.App. 303, 308 [ 240 P. 53], quoting from Pacheco v. Judson Mfg. Co., 113 Cal. 541, 545 [45 P. 833]; Palmer v. Crafts, supra, 16 Cal.App.2d 370, 374, 375.) (2) But the principle likewise can be characterized as assumption of risk.
[3] Many of the cases add the obvious corollary that where the condition which results in injury to the invitee is actually as well known to the invitee as to the property owner no liability arises. ( Mautino v. Sutter Hospital Assn., 211 Cal. 556, 561 [ 296 P. 76]; Mawhiney v. Signal Trucking Co., 132 Cal.App.2d 809, 813 [ 283 P.2d 27]; Markwell v. Swift Co., 126 Cal.App.2d 245, 251 [ 272 P.2d 47]; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 532-533 [ 258 P.2d 75]; Hill v. Eaton Smith, 65 Cal.App.2d 11, 13-14 [ 149 P.2d 762]; Walker v. Greenberger, 63 Cal.App.2d 457, 462 [ 147 P.2d 105]; Funari v. Gravem-Inglis Baking Co., 40 Cal.App.2d 25, 29 [ 104 P.2d 44]; Vitrano v. Westgate Sea Products Co., 34 Cal.App.2d 462, 465 [ 93 P.2d 832].) [4] In Mautino v. Sutter Hospital Assn., supra, 211 Cal. at page 561 the court said: "The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality . . . It is when the perilous instrumentality is known to the owner or occupant and not to the person injured that a recovery is permitted . . . There is no liability for injuries from the dangers that are obvious, or as well known to the person injured as to the owner or occupant."
[17] Complaint is made of the giving of instructions concerning certain industrial safety orders which cover the matter of construction of catwalks, scaffolds, and the like. The claim is that this is error per se, reliance being placed on Hard v. Hollywood Turf Club, 112 Cal.App.2d 263 [ 246 P.2d 716], and Hill v. Eaton Smith, 65 Cal.App.2d 11 [ 149 P.2d 762]. Each of those cases turned upon the legal conclusion that the statute (in the Hard case) or the safety order (in Hill) was not provided for the protection of a class to which plaintiff belonged.
If he was contributively negligent he may not recover. ( Hill v. Eaton Smith, 65 Cal.App.2d 11 [ 149 P.2d 762]; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529 [ 157 P.2d 57].) [7] The test is whether the invitee acted as a reasonably prudent person under the circumstances. In the present case contributory negligence was pleaded by respondents.
The owner or occupant is not required to reconstruct or alter the premises so as to eliminate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or reasonably apparent, or such as should have been observed in the exercise of ordinary care. Caron v. Grays Harbor County, 18 Wn.2d 397, 139 P.2d 626, 148 A.L.R. 626; 65 C.J.S., Negligence, § 50, page 541; 38 Am.Jur. 757, Negligence, 97; See also: Walsh v. West Coast Coal Mines, Inc., 31 Wn.2d 396, 197 P.2d 233; Blodgett v. B.H. Dyas Co., 4 Cal.2d 511, 50 P.2d 801; Fraters v. Keeling, 20 Cal.App.2d 490, 67 P.2d 118; Hill v. Eaton Smith, 65 Cal.App.2d 11, 149 P.2d 762; King v. Griffith Co., 65 Cal.App.2d 114, 150 P.2d 8; City of Tulsa v. Harman, 148 Okla. 117, 299 P. 462. The foregoing principles have been applied by the Courts to invitee patrons in baseball parks.
Since a violation of a statute or ordinance has been held to be negligence per se, McLain v. Haley, supra, in order for the ordinance to be relevant to the question of actionable negligence, the act or omission complained of must have involved an actual violation of the ordinance. 65 C.J.S. Negligence § 19, p. 422; Hill v. Eaton Smith, 65 Cal.App.2d 11, 149 P.2d 762. On its face, this section of the ordinance would seem to refer only to openings in floors and be inapplicable to the instant case.
Defendants, in their opening brief, page 10, have cited numerous cases in support of their contention, and we have carefully considered them, and will now refer to some of those authorities. Hill v. Eaton et al., 65 Cal.App.2d 11, 149 P.2d 762, 764, was an action brought by plaintiff therein, a roofer employee of a subcontractor, against a general contractor, for injuries sustained by the plaintiff from falling through an open skylight in the roof of the structure upon which he was working, as such roofer. A judgment of nonsuit was affirmed, upon the ground that "the open skylights were obvious; they were not hidden in any way, and plaintiff was an experienced roofer, fully aware of their existence."