Opinion of the court by
Judge O’Rear
Affirming.
Appellant, a workman oí a contractor papering certain, rooms of appellee’s house, was injured by stepping onto-a balcony leading from an upper porch to an adjacent room, when the balcony fell, precipitating him to the ground and injuring him. It was not necessary to use this balcony in going to or from the rooms upon which he was at work, but he did use it, without the knowledge or consent off appellee, for his (appellant(s) greater convenience in calling -to a fellow workman below. The falling of the balcony was primarily caused by its unsafe and weakened condition, unknown to appellee. The circuit court gave the jury a peremptory instruction at the close of plaintiff’s evidence to find for the defendant. The question, presented here is, what was appellee’s duty to- appellant under the circumstances? We are of opinion, and so hold, that appellant, while engaged in that work, in using such parts of appellee’s premises as were reasonably necessary to enable him to do his work, was on the premises under the assurance in law by appellee that such parts so necessarily used were reasonably safe for the purposes of such. *865use. But beyond that appellee owed appellant no duty greater than to a stranger or trespasser. And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises, not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected, nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety. “lu entering or leaving premises / the visitor is bound to use the ordinary and customary place of egress and ingress, and if he adopts some.- other way he becomes a mere licensee, and can not recover for defects outside or not substantially adjacent to the regular way.” Shear & R. Neg., 704. The question of negligence is one of mingled law and fact. It is said to include these two facts-: (1) Whether a particular act has-been performed- or dnáltted; and (2) whether the -performance or omission of this act was-a breach of legal duty. . The first of these is a pure question of fact; the second, a pure question of law. Then, when the facts showing the act (that is, showing the circumstances under which the injury occurred) are admitted in the manner ancS to the extent claimed by the complainant, whether they, in law, impose a legal liability on the person sued,- — the owner of the premises in this ease. — is a question purely of law. Plaintiff’s evidence failing to show defendant’s legal liability, it was proper for the trial court to withdraw the case from the jury by an instruction for a nonsuit. Stewart v. President, etc., 12 Allen, 58; Gilbert v. Nagle, 118 Mass., 278; Parker v. Jenkins, 3 Bush, 587.
Judgment affirmed.
Petition for rehearing and modification by -appellant overruled.