NESBETT, Chief Justice.
Appellee was under contract with' the State of Alaska to repair portions of the governor’s mansion in Juneau and had engaged appellant as a subcontractor to re-roof the carport. While working on the carport appellant was injured while using a ladder belonging to appellee. Appellant sued appellee for negligence and for breach of an implied warranty of fitness.
At the conclusion of the presentation of appellant’s evidence the trial court granted appellee’s motion for involuntary dismissal based upon that portion of Civil Rule 41 (b) which provides for such a motion at that point in the trial “on the ground that upon the facts and the law the plaintiff has shown no right to relief.” 1
Appellant’s testimony was that he and his employee arrived at the governor’s mansion in his truck and commenced to unload roofing equipment. At this point appellee is reported to have told appellant not to’ use appellant’s ladder, but to use the appel-lee’s ladder which was nearby. Appellant says he advised appellee that he had to unload his ladder anyway, but that appellee nevertheless got his ladder, which was leaning against the wall, and put it in position to use. Appellant went on to testify that appellee’s ladder was an aluminum extension ladder which consisted of two sections, each of which was approximately fourteen feet in length. When extended, the two sections were held together by clips or hooks. The ladder had moveable angle shoes on the bottom which were intended to' prevent sliding. The appellant stated that he and his employee and appellee climbed the ladder to the roof of the carport. Appellant and his employee commenced chopping away the surface of the roof while ap-pellee was engaged in removing a section of the carport railing to use as a pattern for building a replacement. In order to remove a section of the railing appellee was required to change the position of the ladder three or four times. After about one hour and a half appellee descended by the ladder to return to his shop with the pattern. About one hour later appellant attempted to-descend by the ladder. His testimony, in broken English, was that he stood on the deck, turned around and put his right foot on the first step and that as soon as he put his weight on the ladder “it slide from the hooks and also the footing went out.” Appellant said he knew that the hooks let go-
Because with the piece of lead that was sticking out from the first section, she come down too and then when she come [256]*256down that’s when I hit my — I was stepping on one of those steps and when that piece come down and I hit the other piece of ladder then that flipped my feet backwards and I went backwards.
Appellant also said he knew the hooks came loose because he heard a noise “Like, click, ■click, click, click,” as he was falling down. Appellant’s employee, Lewis Carlick, testified that he only saw a portion of appellant’s body as he started down and heard a ■clicking noise when he fell. He also testified that he assisted appellee and another person finish the carport roof during the afternoon and that appellee’s ladder was •again used to gain access to the carport roof.
In granting the motion for involuntary ■dismissal the trial judge stated:
I have given this matter considerable thought in the light of both the Rogge case [Rogge v. Weaver, 368 P.2d 810 (Alaska 1962)] and the Pope case [Pope v. Anderson, 370 P.2d 185 (Alaska 1962)]. * * * Considering the evidence as I must, from the light which is most favorable to the [appellant], I cannot find that a prima facie case has been made by the [appellant] in this case. The Court is left entirely in the position of guesswork, of speculation as to what has happened in regard to the accident. There is no question that the [appellant] * * * fell but to say there is a lack of care * * * on the part of the [ap-pellee] which has caused this is not shown in the evidence at this point. I cannot find that a prima facie case of negligence has been made out, there is nothing to show a breach of duty, for example, [appellant’s] counsel discusses the * * * disparity of weights of the individuals, if any there be and no such question was asked of the [appellant] and there is no such evidence before the Court as to a disparity of weight. There is no such evidence before the Court that if such a disparity exists what effect it might or might not have on this type of a ladder. It is true that the ladder was later used and it had been used for three men to ascend to the roof, for one to come down, in every possible effort, which I have genuinely made to find a prima facie case at this point for the [appellant], I’m unable to do so. The proof fails at that point. The motion will be granted for the dismissal of Count 1 and Count 2.
We are of the opinion that the trial judge was correct in granting the motion to dismiss.
Even after considering appellant’s evidence in its most favorable light we are of the opinion that he failed to establish a prima facie case of negligence. No duty of care was established. Appellant was an independent contractor. By the terms of his contract with appellee, appellant was to furnish his own equipment. He in fact brought his own ladder to the job site, removed it from his truck and placed it against the fence. There is nothing in the record to indicate that appellee’s offer of the use of his ladder was anything other than a gratuitous act. It cannot be logically inferred that appellee was to receive any benefit from appellant’s use of his ladder. On the contrary, the most logical inference from the circumstances as 'related by appellant would seem to be that it made no difference to appellee whether or not appellant accepted his offer. Appellee’s ladder was apparently already leaning against the building. Appellant’s own ladder was lying within a few feet of the carport and could have been raised in a matter of seconds if he had preferred to use it instead of appel-lee’s
Appellant relies upon section 392 of the Restatement (Second) of Torts (1965) to establish a duty of care by ap-pellee.2 We do not believe, however, that [257]*257the evidence permits an inference that appellee was supplying the ladder for his own “business purposes.” More in point with respect to the evidence presented in this case is the wording contained in comment (e) of section 392 of the Restatement. Comment (e) states that:
One who employs another to erect a structure or to do other work, and agrees for that purpose to supply the necessary tools and temporary structures, supplies them to the employees of such other for a business purpose. This is true irrespective of whether the structure or work when finished is to be used for business or residential and social purposes. On the other hand, if it is understood that the person who is to do the work is to supply his own instrumentalities, hut the person for whom the zvork is to he done permits his own tools or appliances to he used as a favor to the person doing the work, the tools and appliances are supplied as a gratuity and not for use for the supplier’s business purposes. (Emphasis added.)
We agree with the trial judge that even if there had been a duty of care, no evidence was produced which could logically support an inference of negligence.
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NESBETT, Chief Justice.
Appellee was under contract with' the State of Alaska to repair portions of the governor’s mansion in Juneau and had engaged appellant as a subcontractor to re-roof the carport. While working on the carport appellant was injured while using a ladder belonging to appellee. Appellant sued appellee for negligence and for breach of an implied warranty of fitness.
At the conclusion of the presentation of appellant’s evidence the trial court granted appellee’s motion for involuntary dismissal based upon that portion of Civil Rule 41 (b) which provides for such a motion at that point in the trial “on the ground that upon the facts and the law the plaintiff has shown no right to relief.” 1
Appellant’s testimony was that he and his employee arrived at the governor’s mansion in his truck and commenced to unload roofing equipment. At this point appellee is reported to have told appellant not to’ use appellant’s ladder, but to use the appel-lee’s ladder which was nearby. Appellant says he advised appellee that he had to unload his ladder anyway, but that appellee nevertheless got his ladder, which was leaning against the wall, and put it in position to use. Appellant went on to testify that appellee’s ladder was an aluminum extension ladder which consisted of two sections, each of which was approximately fourteen feet in length. When extended, the two sections were held together by clips or hooks. The ladder had moveable angle shoes on the bottom which were intended to' prevent sliding. The appellant stated that he and his employee and appellee climbed the ladder to the roof of the carport. Appellant and his employee commenced chopping away the surface of the roof while ap-pellee was engaged in removing a section of the carport railing to use as a pattern for building a replacement. In order to remove a section of the railing appellee was required to change the position of the ladder three or four times. After about one hour and a half appellee descended by the ladder to return to his shop with the pattern. About one hour later appellant attempted to-descend by the ladder. His testimony, in broken English, was that he stood on the deck, turned around and put his right foot on the first step and that as soon as he put his weight on the ladder “it slide from the hooks and also the footing went out.” Appellant said he knew that the hooks let go-
Because with the piece of lead that was sticking out from the first section, she come down too and then when she come [256]*256down that’s when I hit my — I was stepping on one of those steps and when that piece come down and I hit the other piece of ladder then that flipped my feet backwards and I went backwards.
Appellant also said he knew the hooks came loose because he heard a noise “Like, click, ■click, click, click,” as he was falling down. Appellant’s employee, Lewis Carlick, testified that he only saw a portion of appellant’s body as he started down and heard a ■clicking noise when he fell. He also testified that he assisted appellee and another person finish the carport roof during the afternoon and that appellee’s ladder was •again used to gain access to the carport roof.
In granting the motion for involuntary ■dismissal the trial judge stated:
I have given this matter considerable thought in the light of both the Rogge case [Rogge v. Weaver, 368 P.2d 810 (Alaska 1962)] and the Pope case [Pope v. Anderson, 370 P.2d 185 (Alaska 1962)]. * * * Considering the evidence as I must, from the light which is most favorable to the [appellant], I cannot find that a prima facie case has been made by the [appellant] in this case. The Court is left entirely in the position of guesswork, of speculation as to what has happened in regard to the accident. There is no question that the [appellant] * * * fell but to say there is a lack of care * * * on the part of the [ap-pellee] which has caused this is not shown in the evidence at this point. I cannot find that a prima facie case of negligence has been made out, there is nothing to show a breach of duty, for example, [appellant’s] counsel discusses the * * * disparity of weights of the individuals, if any there be and no such question was asked of the [appellant] and there is no such evidence before the Court as to a disparity of weight. There is no such evidence before the Court that if such a disparity exists what effect it might or might not have on this type of a ladder. It is true that the ladder was later used and it had been used for three men to ascend to the roof, for one to come down, in every possible effort, which I have genuinely made to find a prima facie case at this point for the [appellant], I’m unable to do so. The proof fails at that point. The motion will be granted for the dismissal of Count 1 and Count 2.
We are of the opinion that the trial judge was correct in granting the motion to dismiss.
Even after considering appellant’s evidence in its most favorable light we are of the opinion that he failed to establish a prima facie case of negligence. No duty of care was established. Appellant was an independent contractor. By the terms of his contract with appellee, appellant was to furnish his own equipment. He in fact brought his own ladder to the job site, removed it from his truck and placed it against the fence. There is nothing in the record to indicate that appellee’s offer of the use of his ladder was anything other than a gratuitous act. It cannot be logically inferred that appellee was to receive any benefit from appellant’s use of his ladder. On the contrary, the most logical inference from the circumstances as 'related by appellant would seem to be that it made no difference to appellee whether or not appellant accepted his offer. Appellee’s ladder was apparently already leaning against the building. Appellant’s own ladder was lying within a few feet of the carport and could have been raised in a matter of seconds if he had preferred to use it instead of appel-lee’s
Appellant relies upon section 392 of the Restatement (Second) of Torts (1965) to establish a duty of care by ap-pellee.2 We do not believe, however, that [257]*257the evidence permits an inference that appellee was supplying the ladder for his own “business purposes.” More in point with respect to the evidence presented in this case is the wording contained in comment (e) of section 392 of the Restatement. Comment (e) states that:
One who employs another to erect a structure or to do other work, and agrees for that purpose to supply the necessary tools and temporary structures, supplies them to the employees of such other for a business purpose. This is true irrespective of whether the structure or work when finished is to be used for business or residential and social purposes. On the other hand, if it is understood that the person who is to do the work is to supply his own instrumentalities, hut the person for whom the zvork is to he done permits his own tools or appliances to he used as a favor to the person doing the work, the tools and appliances are supplied as a gratuity and not for use for the supplier’s business purposes. (Emphasis added.)
We agree with the trial judge that even if there had been a duty of care, no evidence was produced which could logically support an inference of negligence. Three people ascended the ladder and ap-pellee had descended it without incident. An hour or so after appellee had safely descended the ladder it allegedly collapsed with appellant. Appellant argues that it can be inferred that appellee was negligent in some manner as he descended the ladder and that this unspecified negligence must have been the cause of the extension hooks becoming disengaged, permitting the ladder to collapse when appellant attempted to descend. To consider the evidence in the manner suggested would be speculation. The most logical inference from the evidence would seem to be that since the ladder had been safely used repeatedly during the preceding two hours, that it had not been negligently handled, and that appellant’s accident resulted from some inadvertence or carelessness of his own. Appellant has cited our decision in Rogge v. Weaver3 as authority for the proposition that a trial judge should not grant involuntary dismissal at the conclusion of plaintiff’s case if plaintiff has presented a prima facie case based on unimpeached evidence which is not inherently improbable, but should follow the alternative offered by Civil Rule 41(b) and decline to render a judgment until the close of all the evidence. However, in Rogge, this court also said that “[wjhere plaintiff’s proof has failed in some aspect the motion should, of course, be granted” 4 and we believe the trial judge correctly applied this aspect of Rogge in the case before us.
In view of the fact that under the terms of his contract with appellee appellant was to furnish his own equipment,5 and in view of our conclusion that the most logical inference to be drawn from the conduct of the parties with respect to [258]*258the use of appellee’s ladder is that it was a gratuitous favor, it follows that there is no basis for application of the doctrine of implied warranty of fitness. Nor was any evidence presented which would support a logical inference that appellee had violated a duty of care toward appellant.
We cannot accept appellant’s alternative contention that he was clothed with the status of a business visitor or invitee with respect to appellee. Appellee was not the owner of the premises and exercised no control whatsoever over them.6
The judgment below is affirmed.