                                     No. 12364

        I N THE SUPREME C U T O THE STATE O M N A A
                         OR    F           F OTN

                                          1973



ALFRED L. BECK,

                             P l a i n t i f f and Respondent,



S E M N MUSIC COMPANY, I N C . ,
 HR A                                        and
RICHARD KELLOG,

                             Defendants and A p p e l l a n t s .



Appeal from:         D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                     Honorable P e t e r G . Meloy, Judge p r e s i d i n g .

Counsel of Record:

     For Appellants :

             Clayton R. Herron ,argued, Helena, Montana

     For Respondent :

            Will-iam J. K r u t z f e l d t argued, Miles C i t y , Montana
            Gene Huntley argued, Baker, Montana



                                                   Submitted : December 3 , 1973

                                                      Decided
                                                                  ' J f l # g ~ 193
F i l e d :XAW   3 0 1974
Hon. Robert Boyd, D i s t r i c t Judge, d e l i v e r e d t h e Opinion of t h e
Court.

          T h i s i s a n a p p e a l from a judgment i n f a v o r of p l a i n t i f f
A l f r e d L. Beck and a g a i n s t defendant Sherman Music Company, I n c . ,
f o r p e r s o n a l i n j u r i e s a l l e g e d t o have been s u f f e r e d by p l a i n t i f f
w h i l e he was on t h e premises of defendant a s a n i n v i t e e . Defendant
subsequently made a motion f o r new t r i a l and judgment notwith-
s t a n d i n g t h e v e r d i c t , which was denied.          Defendant a p p e a l s .
           H e r e i n a f t e r p l a i n t i f f w i l l b e r e f e r r e d t o i n t h i s opinion
a s Beck and defendant a s Sherman Music.
           Beck, a self-employed independent p a i n t i n g c o n t r a c t o r ,
e n t e r e d i n t o an agreement w i t h Sherman Music t o do t h e p a i n t i n g
n e c e s s a r y t o remodel a b u i l d i n g owned by Sherman Music from a
t a v e r n t o a music s t o r e .      On t h e day of t h e a c c i d e n t Beck had
s t a r t e d t h e p a i n t i n g job about 9:30 a.m.            Between 3:00 and 3 : 3 0
p.m.   he went i n t o t h e l a d i e s restroom l o c a t e d toward t h e r e a r of
t h e b u i l d i n g and washed up, i n c l u d i n g h i s p a i n t brushes.             He
t h e n took h i s brushes w i t h him and l e f t t h e premises.
           A t t h i s p a r t i c u l a r s t a g e i n t h e remodeling process t h e
e n t i r e f r o n t of t h e b u i l d i n g had been removed, i n c l u d i n g t h e doors
and windows.          When he l e f t t h e Sherman Music premises Beck went
t o a food s t o r e , bought some g r o c e r i e s and t h e n r e t u r n e d t o h i s
combined r e s i d e n c e and p a i n t shop.           While t h e r e he n o t i c e d h i s
w r i s t watch was missing and he b e l i e v e d he had l e f t t h e watch i n
t h e restroom a f t e r washing up.               H e r e t u r n e d t o t h e premises t o
p i c k up h i s watch, a r r i v i n g t h e r e a t approximately 4 : 4 0 p.m.                   The
only person i n t h e a r e a was a cement f i n i s h e r who was working on
t h e sidewalk a t t h e f r o n t e n t r a n c e t o t h e b u i l d i n g .
           A t t h i s time t h e o n l y l i g h t i n t h e b u i l d i n g was n a t u r a l
l i g h t coming from t h e open f r o n t of t h e b u i l d i n g which faced west.
When Beck had p r e v i o u s l y been i n t h e b u i l d i n g t h e l a d i e s restroom
had been l i g h t e d , b u t a t t h i s time t h e r e were no l i g h t s on i n t h e
a r e a o u t s i d e t h e l a d i e s restroom door.          I n t h e hallway i n t h e a r e a
t o which ~ e c k ' sa t t e n t i o n was d i r e c t e d were t h r e e doorways, one
for the ladies restroom, one for the basement stairway and
the third for the men's restroom.    Beck opened the first door
he came to in the hallway, believing it to be the ladies rest-
room.   It was dark so he reached in, flipped a light switch,
and stepped over the threshold.    When he stepped over the
threshold he fell down the flight of steps to the basement and
was injured.     The stairway leading to the basement was extremely
steep with a very narrow landing at the top of the stairs.
        It appeared that Beck was familiar with the premises both
from his work earlier in the day and by reason of visits to the
premises over a period of several years when it was occupied as
a liquor establishment.
        Beck testified that when he walked through the hallway
and through the door he did not light any matches in the hallway
or doorway or provide any artificial light.     At the close of
plaintiff's evidence and again at the close of the case, defendant
made motions for directed verdict on the grounds that plaintiff
was a licensee, not an invitee; that no wilful or wanton negligence
was shown, and that plaintiff was guilty of contributory negligence
as a matter of law.    Thereupon, over defendant's objection, the
court instructed that plaintiff was an invitee, as a matter of law,
and submitted the questions of contributory negligence and assump-
tion of risk to the jury for determination as a question of fact.
Verdict was rendered for plaintiff and defendant subsequently
moved for a new trial and judgment notwithstanding the verdict.
From the ruling denying defendant's motion and from the judgment,
defendant appeals.
        The first question to be determined is whether or not the
district court erred in holding that Beck was an invitee as a
matter of law.
        It is conceded by Sherman Music that ~eck's 9:30 to 3 : 3 0
visit to, and presence on, the premises was for the purpose of
carrying out the painting duties which he had contracted to perform
and during that period he was an invitee or business visitor.
However, defendant contends the second or 5:00 p.m. visit to
the premises that day was for the purpose of retrieving his watch
which he had left in the washroom during his clean-up operation.
A new visit and entry upon the premises took place at 5:00 p.m.
On this basis, defendant contends that at the time of the accident
Beck could have been nothing other than a bare licensee.     Sherman
Music relies heavily on Hickman v. First National Bank of Great
Falls, 112 Mont. 398, 117 P.2d 275, wherein this Court held that
the status of a person entering upon the property of another pursuant
to an invitation may lose his status as an invitee and become a
mere licensee by virtue of his conduct thereafter.
       We agree that Beck's presence on the premises was that of
a business visitor or invitee.   The controlling element in this
fact situation is whether or not Beck was invited or permitted to
go to that portion of the premises where he suffered his injuries.
If at the time and place he was not privileged to be on the pre-
mises, then he would be a trespasser.
       From the facts disclosed by the record, Beck was an invitee
by virtue of his contract of employment.   As such he did not become
a trespasser merely because his injury occurred while he was not
in the act of painting.   He was entitled to such other parts of the
premises as were necessary or reasonably incidental to the work
he was required to perform.   Beck was entitled not only to use the
area where he was actually carrying on his work, but was also
entitled, without losinghis status as an invitee, to use such
other places on the premises as would have some reasonable connec-
tion with his work of painting, Under the facts there can be no
doubt that ~eck's return to the premises for the purpose of re-
trieving his watch was reasonably connected with his work.    It was
closely interrelated with the proper performance of his work
and was in fact a tool necessary to his proper functioning as an
independent contractor.   Therefore the district court was correct
in holding, as a matter of law, that at the time of the accident,
Beck was an invitee on the premises of Sherman Music.
       Defendant Sherman Music next asserts the trial court should
have found as a matter of law that Beck had assumed the risk and
was guilty of contributory negligence.     Both doctrines were sub-
mitted to the jury under proper instructions as questions of fact
and rejected by the jury in its verdict.
       As to the assumption of risk, as previously noted, Beck
had a degree of familiarity with the restroom area by reason
of his use, as a prior patron, and in his washing chores following
his work shift.   Nowhere in the record does it appear that Beck
was aware of or knew of the location of a stairway, or even of
the existence of a basement under the building.
       If a question does exist as to assumption of risk it is
whether there was sufficient evidence upon which to submit the
question to the jury, let alone take the question from the jury.
We here follow the rule as set forth in Wollan v. Lord, 142 Mont.
498, 503, 385 P.2d 102, which states:
       II In order to charge the servant with assuming

       a risk, four elements must be proved by a
       master: ( ) knowledge, actual or implied, of
                   1
       the particular condition; (2) appreciation of
       this condition as dangerous; (3) a voluntary
       remaining or continuing in the face of the
       known dangerous condition; ( ) injury resulting
                                     4
       as the usual and probable consequences of this
       dangerous condition. I I
See also:   Dl~oogev. McCann, 151 Mont. 353, 443 P.2d 747; Hanson
v. Colgrove, 152 Mont. 161, 447 P.2d 486; Dean v. First National
Bank, 152 Mont. 474, 452 P.2d 402; Restatement of Torts 2d, 5 496(D).
       We find no knowledge of the existence of the risk nor any
appreciation of its unreasonable character on the part of Beck.
In the light of Instruction No. 21, we believe the district court
correctly instructed the jury as to the defense of assumption of
risk and that at best the defense presented a question of fact
and not of law.
       As in most cases of this type, the defenses of assumption
of risk and contributory negligence tend to overlap, and the same
kind of conduct frequently is given either name, or both.    In
theory the distinction between the two is the assumption of risk
rests upon the voluntary consent of the plaintiff to encounter
the risk, while contributory negligence rests upon his failure
to exercise the care of a reasonable man for his own protection.
       ~efendant's position in this matter would seem to be
that by reason of Beck proceeding as he did into the dimly lit
hallway area and stepping through the doorway leading down the
stairs, that he was contributorily negligent per se.     The
better rule is stated in 22 ALR3d 286, 292:
       I I Proceeding in the dark is not contributory

       negligence per se, and the proceeding in the
       dark cases are no exception to the general
       rule that the contributory negligence issue is
       a question of law only when the plaintiff's
       negligence is so clearly established that reason-
       able minds can reach no other conclusion."
This rule has been followed in Montana for many years.    Bennetts
v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336; Gray v.
Fox West Coast Service Corp., 93 Mont. 397, 18 P.2d 797; McCartan
v. Park Butte Theater Co., 103 Mont. 342, 62 P.2d 338; Ahlquist v.
Mulvaney Realty Co., 116 Mont. 6, 152 P.2d 137; 62 Am Jur 2d,
Premises Liability, 5 308.
       The district court properly submitted the question of
contributory negligence to the jury and the judgment is affirmed.
                                            \                  I



                                      I




                                   District Judge, hitting f&r Mr..
                                   Justice Castles.
