Plaintiff seeks damages for injuries sustained on November 5, 1956, while working on the installation of a housing unit over the pump of an oil well owned by defendant and known as the Grimm well. Plaintiff was employed as a laborer or “roustabout” by L & L Production Service, an independent contractor. The other members of the L & L crew were Ervin Kaatz, foreman, and Robert Larsen. The pumping unit itself had been installed previously by the same L & L crew and was operating at the time of the accident. Between installation of the pumping unit and housing unit, the L & L crew had worked elsewhere in the oil field.
The pumping unit included counter weights and an engine which applied power to operate the pump by means of V-belts. The L & L crew was building forms for the concrete footing on which the house would be placed. Larsen had gotten into the path of one of the counter weights. Plaintiff saw his predicament and warned him. Larsen lurched forward (partly on his own power and partly from being struck by the counter weight), bumping plaintiff, who lost his balance and caught his right arm in the V-belt. His arm was drawn around the engine’s pulley. The accident occurred about 2:00 o’clock p.m.
D. J. Magraw, defendant’s field foreman at the oil field, had an office approximately 100 yards from the Grimm well. Kaatz ordinarily checked with Magraw each morning to see what work should be done that day. Magraw believed he had discussed the making of the forms with Kaatz the morning of the accident. Ed Jensen was employed by defendant as a “pumper gauger” to service the pump engines and check the daily production of the wells.
Ordinarily V-belt guards were installed at the time the engine was ready to operate, and before the house over the engine was erected. In this instance, however, this was not done because the pumping unit had arrived without the usual guard. It was Magraw’s responsibility to arrange for guards. He decided to have welders make the necessary guards because that would be cheaper and faster than ordering new ones. The engine had been operating without guards for the greater portion of three weeks prior to the accident. For a few days the natural flow was sufficient without pumping.
Magraw testified that it was his recollection that he told Kaatz to shut down the engine while installing the house, and that when he got through, if the pumper (Jensen) were not available, to start it himself.1 Kaatz testified that it was part of his job to know how to start and stop pump engines, but he could not *760recall whether Magraw told him that he should shut the engine down when he saw fit. Kaatz testified further that he felt free to turn the engine on and off if it was “hazardous in any way”.2 Neither plaintiff nor Larsen had any authority to turn off the engine, did not know how to start or stop it, and had never done so.
Two days prior to the accident Kaatz, Zimmer and Larsen went to one of defendant’s wells in North Dakota for the house to be installed at the Grimm well. In order to disassemble the house, it was necessary to remove the guard over the V-belt running from the engine to the pumping unit. On this occasion Kaatz shut down the engine for about one-half hour while the guard was being removed, and later restarted the engine.
Plaintiff and Larsen both testified that the engine at the Grimm well had not been shut down on November 5th prior to the accident. Magraw testified that he noticed that the pump was not running at about 10:00 a.m. and also that it was not running at about 1:00 p.m.; and that he did not know that the engine had been started until Larsen told him about Zimmer’s accident about 2:00 or 2:30 p.m. He did not know who started the pump, but testified that he did not turn the engine on or off on the day of the accident.
Kaatz testified that they had started! making the forms on the opposite side-of the engine from where plaintiff was. injured. In order to start the forms on that side, it was necessary to remove drip pots which in turn required the engine to be turned off. He recalls moving the drip pots, turning the engine off,, and turning it on again, but he did not recall how long before the accident he had restarted the engine.3
Magraw testified that railings or guards for the east and west sides of the counter weights had been completed and' temporarily placed in position prior to. the accident, and that the east railing had been moved out when he looked at. the pumping unit after the accident. According to Kaatz, either he or some member of his crew moved the counterweight guards on the east side of the-unit (where the accident occurred) to> *761make it easier to get at the forms.4 Plaintiff and Larsen did not recall these counter weight guards.
Jensen serviced the pump engine daily .and usually turned the engine off while doing his work. He recalled that the pump was running when he cheeked it on the morning of November 5th, but he could not recall whether it was running when he made out his gauge report in the office around 10:00 a.m. He was at another well about two and one-half miles away when the accident occurred. To the best of his recollection Jensen did not turn the engine on or off the day of the accident, but he could not “remember for sure”.
L & L Production Service had qualified under the Workmen’s Compensation Act of the State of Montana, and pursuant thereto plaintiff received compensation and effected a final compromise settlement.5
Plaintiff contends that defendant had control of the pumping unit at all times; that defendant was negligent in not providing plaintiff with a safe place to work and, more specifically, that defendant was negligent (1) in operating the pumping unit while the L & L crew was working on the housing forms, and (2) in operating the engine without first placing guards, screens and railings around the Y-belts, pulleys and counter weights. Defendant contends that L & L Production Service, through its foreman, Kaatz, had control of the pumping unit at the time of the accident; that defendant was not negligent; that the acts of plaintiff’s fellow employees were the proximate cause of plaintiff’s injuries, that plaintiff was contributorily negligent, and assumed the risk, and that the accident was unavoidable as far as defendant was concerned.
It is undisputed that defendant was the owner of the well, including the pumping unit and all attachments, and the products of the well; that it was the responsibility of defendant, through its foreman Magraw, to install guards over the engine; and that the pump had been operating, more or less continuously, for approximately three weeks without the guards. It is likewise undisputed that L & L Production Service, plaintiff’s employer, had been engaged as an independent contractor to install both the pumping unit and the housing over the unit. Defendant’s foreman, Magraw, gave directions to L & L foreman, Kaatz, with respect to what work should be done, but there is no evidence that Magraw exercised any supervision or control over the actual performance of the work by Kaatz and the other members of the L & L crew.6
There is a dispute as to whether it was the obligation of defendant, the independent contractor, or both, to turn off *762the engine while installing the housing unit. I think it is clear from the evidence that neither defendant nor L & L had exclusive control over the operation of the engine. Magraw, Jensen and Kaatz had all on occasion turned the engine on and off. The testimony, however, supports the conclusion that Kaatz was the only person who did in fact turn the engine off and on again the day of the accident.7 It is also undisputed that he had stopped the engine at the North Dakota well and restarted it two days before the accident. Plaintiff and Larsen were present on both occasions.
It was agreed at the pre-trial conference that plaintiff was a business guest or invitee of the defendant, and that defendant owed to plaintiff the duty of reasonable care. It was agreed further that the defenses of contributory negligence, fellow servant doctrine, and assumption of risk, are available to defendant. Plaintiff contends, however, that defendant had retained control of the premises, including the pumping unit, and by reason thereof, safety provisions prescribed by Montana statutes for employers are applicable.
The statutory provisions,8 however, relate specifically to employers and employees and are included in the Code as a part of the Workmen's Compensation Act. I can find nothing in the statutory safety provisions relating to any duties on the part of any one other than an employer. It is my opinion that these provisions are not applicable and do not extend the duty owed to an independent contractor and his employees by a contractee, even where the eontractee retains complete or partial control of the premises.
The general rule, with respect to the liability of possessors of land to business visitors, is stated in Restatement, Torts, § 343, as follows: “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon, but only if he
“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
“(c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm.”
The rule in Montana was well summarized by the Montana Supreme Court in Cassady v. City of Billings, Mont. 1959, 340 P.2d 509, 510: “It is well-established in Montana that a landowner is obligated toward an invitee to either use ordinary care to have the premises reasonably safe, or to warn the invitee ‘of any hidden or lurking danger therein’. Milasevich v. Fox Western Montana Theatre Corp., 118 Mont. 265, 270, 165 P.2d 195, 197, and see Restatement, Torts, Negligence, § 343. He is not an insurer against all accidents and injuries to such persons while there. Milasevich v. Fox Western Montana Theatre Corp., supra.”
In Chichas v. Foley Bros. Grocery Co., 1925, 73 Mont. 575, 236 P. 361, the court held that “an owner or occupant of lands or buildings, who directly or by implication invites or induces others to go thereon or therein, owes to such person a duty to have his premises in a reasonably safe condition, and to give warning of latent or concealed perils.” 236 P. at page 363.9 While there are no *763Montana cases precisely in point, involving the duty to an independent contractor and his employees, it is my opinion that the Montana court would follow the general rule that the contractee owes to the employee of the independent contractor the same duty which he owes to any invitee or business visitor lawfully on the premises.10
In the instant case there were no “latent or concealed perils” or “hidden or lurking dangers”. The fact that the pump was running with unguarded V-belts was open and obvious. Plaintiff had worked on the installation of the pump. While this was the first pump on which he had worked, he was acquainted with machinery and moving parts and was aware of their danger.11 Where it is obvious that injury would probably result from contact with a machine while it is in motion and it would be unnecessary and useless to warn of the danger, no negligence can be predicated on failure to so warn. Forquer v. Slater Brick Co., 1908, 37 Mont. 426, 97 P. 843. Actionable negligence arises only from a breach of a legal duty or obligation. Ahlquist v. Mulvaney Realty Co., 1944, 116 Mont. 6, 152 P.2d 137; Mitchell v. Thomas, 1932, 91 Mont. 370, 8 P.2d 639; Cassady v. City of Billings, supra.
Before proceeding to a discussion of cases from other jurisdictions which have considered similar facts, it seems appropriate to refer to the Montana rules on assumption of risk and contributory negligence. The defense of assumption of risk “extends to relationships independent of the master-servant relationship”. Cassady v. City of Billings, supra, and cases there cited. While the defenses of contributory negligence and assumption of risk are distinguish*764able, they are closely related, and under the facts here present may properly be considered together.
“Every person is bound to an absolute duty to exercise his intelligence to discover and avoid dangers that may threaten him. When, therefore, a plaintiff asserts the right of recovery on the ground of culpable negligence of the defendant, he is bound to show that he exercised his intelligence to discover and avoid the danger, which he alleges was brought about by the negligence of the defendant.” George v. Northern Pacific Ry. Co., 1921, 59 Mont. 162, 196 P. 869, 871.12 Mere knowledge of the existence of an offending instrumentality, however, is not sufficient in itself to constitute contributory negligence; but “in addition the person so using it must have appreciated or must have had the opportunity to appreciate danger from its use before contributory negligence will bar recovery * * Lake v. Emigh, 1946, 118 Mont. 325, 167 P.2d 575, 578.13
It is stated in an. A.L.R. annotation that “in an action brought by a contractor’s servant against the contractee, it is a valid defense that the conditions by which the injury in question was occasioned were known to and appreciated by the plaintiff, and that he is consequently chargeable with an implied assumption of the risks arising from those conditions. This assumption is predicated independently of contract, and in this respect it differs from that which is regarded as constituting a bar to recovery in action brought by a servant against his own master.” 44 A.L.R. 932, 1122.14
The Court of Appeals of the Ninth Circuit considered the questions here involved in Sullivan v. Shell Oil Company, 1956, 234 F.2d 733, certiorari denied 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160,— an action against the owner-occupier of premises by an employee of an independent contractor engaged in dismantling an oil tank. The court reversed a directed verdict in favor of the defendant, holding that the case presented issues of fact for the jury. In applying California law, the court said in part: “Employees of an independent contractor injured in the performance of a contract between their employer and the owner, are on the premises by the owner’s invitation express or implied, and the owner owes a duty to warn against hidden dangers of which he knows or reasonably ought to know and of which they are unaware (citing cases); and the owner-occupier owes to them the duty to furnish them a safe place in which to work. More accurately stated, the owner-occupier must ‘use reasonable care to keep his premises in a reasonably safe condition, and give warning of latent or concealed perils’, (citing cases).
“But the owner-occupier is not liable when the injuries result from a danger obvious to the injured party. The obvious danger rule has been stated by the Supreme Court of California as follows: * * * * if there is a danger attending upon such entry, or upon the work which the person invited is to do thereon, and *765such danger arises from causes or conditions not readily apparent to the eye, it is the duty of the owner to give such person reasonable notice or warning of such danger.’ (citing cases) ‘But such owner is entitled to assume that such invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. He is not required to give to the invitee notice or warning of an obvious danger.” 234 F.2d at page 738.
With respect to the defenses of the assumption of risk and contributory negligence, the court said in part: “The rule on assumption of risk as compared to contributory negligence, was recently stated by the California Supreme Court and is pertinent here. ‘The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. (See Prosser on Torts (1941), p. 377). It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (See Rest., Torts, § 893.) 15 Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence and not assumption of risk. * * * ’ (Citing cases.)
“ ‘ “ ‘The fact that one voluntarily assumes a certain degree of risk is not conclusive of negligence.’ ” ’ DeGraf v. Anglo California Nat. Bank, 1939, 14 Cal. 2d 87, 100, 92 P.2d 899, 905. ‘ * * * And before it can be said that one has “assumed the risk” of a specified hazard, it must be shown that he had knowledge of the condition creating the hazard’, DeGraf v. Anglo California Nat. Bank, supra, 14 Cal.2d at page 100, 92 P.2d at page 905; Hayes v. Richfield Oil Corp., 1952, 38 Cal.2d 375, 385, 240 P.2d 580.” 16
In Stein v. Battenfeld Oil & Grease Co., 1931, 327 Mo. 804, 39 S.W.2d 345, the court affirmed a judgment of nonsuit where an independent contractor was killed while repairing electrical apparatus in defendant’s manufacturing plant. Deceased became entangled in a belt running from an electric motor. The court stated: “The deceased, in going to the respondent’s plant as an independent contractor to do work, was an invitee. *766The respondent would be liable for injury to him occasioned by any unsafe condition of the premises encountered in the work, which was known to it but unknown to him; but was not liable for injuries resulting from conditions obviously dangerous and known by the deceased to be so. As to these, he was guilty of contributory negligence, or, more accurately, assumed the risk.” 39 S.W.2d at page 351.17
In McKee v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391, an employee of a subcontractor was injured when he fell from a ladder which was resting on a polished floor. Plaintiff sought to recover from the general contractor on the ground that he was negligent in allowing the floor to be finished before the overhead carpentry. The court assumed, • for the purposes of the opinion, that defendant was negligent in scheduling the work in that order, but held that as a matter of law that plaintiff voluntarily exposed himself to the dangers of working on the slick floor and that defendant breached no duty it owed to him. The court said:
“A general contractor in control of premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees * * *.
“There are two legal theories, wholly aside from plaintiff’s own negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries growing out of open and obvious dangers thereon. One rests on the judicial concept that there is no breach of any duty the landowner owes to his invitees. The other arises out of the doctrine of violenti non fit injuria — voluntary encountering of risk — which is regarded as a defense to all negligent actions.
In this state both theories are recognized. Actually, in their application to a given fact situation the two theories so completely overlap as to be almost indistinguishable.” 271 S.W.2d at page 393.18
It is true, as plaintiff contends, that this case does not involve defective *767machinery, but the same principles of law are applicable with respect to unguarded moving machinery. The question in each case is whether the danger is open and obvious, and whether the invitee appreciated the danger or, as a reasonably prudent person, should have done so.19 Naturally, the question of whether the danger is obvious or latent arises more frequently in cases involving defective machinery.
It is my conclusion that the independent contractor was in control of the premises where the accident occurred, subject to joint control with defendant with respect to turning the pump engine on and off. Defendant’s foreman and pump gauger and the independent contractor’s foreman all had authority to shut off and restart the engine and, in fact, had done so. As far as shown by the evidence, the only person who did so the day of the accident was the foreman of the independent contractor. It is conceded that plaintiff was an employee of the independent contractor and an invitee of the defendant.
There were no “hidden or lurking dangers”. The unguarded V-belt was open and obvious. The existence of the dangerous condition was known to plaintiff, who appreciated or should have appreciated its danger.
It is accordingly my opinion that (1) the evidence failed to establish a breach of any duty owed by the defendant to plaintiff; and (2) the plaintiff assumed the risk of the injury which he sustained.
Pursuant to Rule 11 of the local rules of court, the defendant shall, within ten days, prepare, serve and file proposed findings of fact and conclusions of law and draft of judgment in accordance with this opinion.