Whether plaintiff was guilty of contributory negligence in passing along the floor without keeping a lookout; whether Mrs. Herman's conduct in leaving the trapdoor open and failing to warn the plaintiff, constituted negligence on her part, it is unnecessary to determine. But certain it is, under the undisputed facts in the record, that it was one of these acts, or both of them concurring, whether negligent or otherwise, and not the failure of the defendant to comply with the ordinance, which was the proximate cause of plaintiff's injury: Whisler v. U.S. National Bank, 160 Or. 10, 82 P.2d 1079, and Lewis v. Jake's Famous Crawfish, Inc., 148 Or. 340, 36 P.2d 352. The absence of a railing was, as Mr. Justice RAND said in the Eklof case, "only a condition or circumstance surrounding the happening of the accident".

The added wear and tear on the conveyor which is conveying other pieces is insubstantial in our opinion, as is any theoretical good will from workmen. Plaintiff contends that the factual situation here is analogous to that in Whisler v. U.S. Nat. Bank of Portland, 160 Or. 10, 82 P.2d 1079 (1938), where this court held that the plaintiff was an invitee. Plaintiff was employed as a waitress at a lunch counter in a drugstore.

Upon appeal after a verdict for plaintiff this court must take such a view of the evidence. McMillan v. Kik, 181 Or. 270, 181 P.2d 128 (1947); Whisler v. U.S. Nat. Bank of Portland, 160 Or. 10, 82 P.2d 1079 (1938); Doyle v. Southern Pac. Co., 56 Or. 495, 108 P. 201 (1910). Tom and Pat were brother and sister.

" (Emphasis ours.) Martin v. Harrison, supra ( 182 Or. 137); Fox v. Royce, 194 Or. 419, 425, 242 P.2d 190; Whisler v. U.S. Nat. Bank of Portland, 160 Or. 10, 16, 82 P.2d 1079. Our examination of the facts respecting the plaintiff's speed, control and brakes does not unerringly point to negligence on the part of plaintiff and therefore these issues were properly determinable by the jury.

"The doctrine of Assumption of Risk in Oregon applies only in situations involving a master and servant relationship, and such doctrine does not apply in cases involving a baseball club proprietor-patron relationship. Furbeck v. Gevurtz, 72 Or. 12, 143 P. 654, 143 P. 922; Whisler v. United States National Bank of Portland, 160 Or. 10, 82 P.2d 1079."

" In deciding whether plaintiff was guilty of contributory negligence as a matter of law, the court, in considering the evidence, must measure the conduct of plaintiff by the standard of care that an ordinarily prudent person would have exercised under the same circumstances. Whistler v. U.S. Nat. Bank of Portland, 160 Or. 10, 82 P.2d 1079. In Pritchard v. Terrill, 189 Or. 662, 666, 222 P.2d 652, we said:

If the door was open, the plaintiff could infer a representation upon the defendant's part that the elevator platform was beyond the threshold for him to step upon. In acting upon that representation, the plaintiff was not necessarily guilty of contributory negligence: Helzer v. Wax, 127 Or. 427, 272 P. 556; Whisler v. United States National Bank of Portland, 160 Or. 10, 82 P.2d 1079; 18 Am. Jur., Elevators and Escalators, p. 564, § 80; McKenna v. Grundbaum, 33 Ida. 46, 190 P. 919; Moohr v. Victory Investment Co., 144 Wn. 387, 258 P. 43; Sheridan v. Aetna Casualty Surety Co., 3 Wn.2d 423, 100 P.2d 1024; Steger v. Immen, 157 Mich. 494, 122 N.W. 104, 24 L.R.A. (N.S.) 246; Shoninger v. Mann, 219 Ill. 242, 72 N.E. 354, 3 L.R.A. (N.S.) 1097; Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A. (N.S.) 1118; Aiken v. Sidney Steel Scraper Co., 197 Mo. App. 673, 198 S.W. 1139. We find no merit in the second, third and fourth assignments of error.

In attempting to determine the allocation of liability between a lessee and a landlord for the damages suffered by a third party, courts have consistently regarded the issue of "control" as determinative. See Bickham v. Reynolds et ux, 224 Or. 194, 355 P.2d 756 (1960); Wilkens v. West. States Groc. Co., 167 Or. 103, 114 P.2d 542 (1941); Staples v. Senders, 164 Or. 244, 96 P.2d 215, 101 P.2d 232 (1940); Whisler v. U.S. Nat. Bank of Portland, 160 Or. 10, 82 P.2d 1079 (1938). Plaintiff has cited Chance v. Ringling Bros., 257 Or. 319, 478 P.2d 613 (1970), in support of the argument that the complaint sufficiently charged a duty on the part of the Board. Although the court there did decide that Ringling Brothers owed a duty to the plaintiff and other business invitees, the evidence had clearly shown that:

Defendant appeals assigning as error the failure of the court to allow its motion for a directed verdict on the ground that there was insufficient evidence to support plaintiff's specification of negligence that defendant knew, or should have known, that requiring plaintiff to perform the exercise could result in serious physical injury. This assignment requires a recital of the facts which are to be considered in a light most favorable to plaintiff. Whisler v. U.S. Nat. Bank of Portland, 160 Or. 10, 12, 82 P.2d 1079 (1938); McMillan v. Kik, 181 Or. 270, 271, 181 P.2d 128 (1947). The exercise consisted of jumping from an elevated board 14 inches high which rested on a coiled spring, touching the toes in the air and landing on the feet.