opinion: Grady HAMRICK, Appellant, v. AEROJET-GENERAL CORPORATION, INDUSTRIAL SYSTEMS DIVISION, an Ohio Corporation, Appellees.
  No. 73-1053.
  United States Court of Appeals, Fourth Circuit.
  Submitted Oct. 13, 1975.
  Decided Nov. 12, 1975.
  Martin C. Bowles, Charleston, W. Va., and Bennett R. Burgess, St. Albans, W. Va., for appellant.
  John S. Haight, Charleston, W. Va., for appellee.
  Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
  PER CURIAM:
  Plaintiff-appellant seeks reversal of the decision of the District Court denying him relief for personal injuries which he allegedly suffered as the result of defendant-appellee’s negligence. The complaint was filed in the Court of Common Pleas of Kanawha County, West Virginia, and was removed by the defendant to the United States District Court for the Southern District of West Virginia on the basis of diversity of citizenship. The trial court, sitting without jury, found that the defendant was not negligent, and that the plaintiff himself was guilty of contributory negligence and assumption of risk.
  Defendant, Aerojet, was a general contractor which had undertaken a construction project for Union Carbide Corporation. The plaintiff was instructed by his employer, Dougherty Company, Inc., one of defendant’s subcontractors, to report to the Union Carbide construction site. Upon arrival, finding it necessary to ascend to the third floor of the project, he chose to utilize the “man-lift” instead of a staircase which was equally accessible. The “man-lift” is a conveyor belt which stands perpendicular to the ground, has footholds and handles which allow persons to secure themselves, and serves as a crude mode of elevator. Having mounted the lift, the plaintiff failed to realize that he had gone beyond floor level of the top floor, and was approaching the point at which the belt would make a 180 degree turn and begin its descent. As a consequence, he was forced to jump off the lift. Upon impact with the floor, appellant sustained serious damage to his ankle.
  Appellant alleged in the District Court that Aerojet was negligent in several regards, most notably in that they failed to mark the floors adjacent to the path of the man-lift. In support of his claim, he cited West Virginia Code Chapter 21, Article 3, §§ 1-3, which requires that employers take certain precautionary measures to protect employees from injury from mechanical apparatus.
  Although West Virginia treats the violation of such a statute as prima facie negligence if it is the proximate cause of injury, Tarr v. Keller Lumber and Construction Co., 106 W.Va. 99; 144 S.E. 881 (1928), the District Court properly noted that the Supreme Court of West Virginia has held the above-mentioned statutory provision to be applicable only to the employer-employee situation. See Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 838, 156 S.E.2d 297, 302 (1967). There is no dispute as to the fact that appellant and Aerojet did not stand in the relationship of employer and employee. Additionally, the District Court reasoned that the statutory language indicated a legislative intent to make the safety requirements applicable to operational industrial facilities, not to those which are merely under construction. Since the statute speaks to owners of places of employment “now or hereafter constructed,” W.Va. Code, c. 21, art 3, § 1, we feel that such an interpretation is proper. Although not unambiguous, the West Virginia Supreme Court seemed to concur in this construction. See Chenoweth v. Settle Engineers, Inc., supra at 838, 156 S.E.2d at 302.
  The trial judge thus examined the duty owed to the plaintiff in accordance with the common law of West Virginia. Appellant urges that through the doctrines of “reasonable convenience” or “mutual advantage” he was owed the duty of reasonable care, rather than the lesser duty of refraining from willful and wanton conduct. On the authority of Perkins v. Henry J. Kaiser Company, 236 F.Supp. 484, (S.D.W.Va.1964), aff’d, 339 F.2d 703, the District Judge found neither theory to be applicable to the instant case. “Mutual advantage” requires that the owner of the apparatus receive advantage from the permitted use by another of that particular piece of equipment. Id. at 487. It is clear from the record that plaintiff could have chosen just as easily to use the stairs for his two-story ascent, and that no benefit accrued to Aero as a result of his decision to use the “man-lift.” “Reasonable convenience” is pertinent where it is foreseeable that use of the mechanism would be reasonably necessary for the subcontractor to perform the functions owed his general contractor. Id.; See also Pettyjohn v. Basham, 126 Va. 72, 100 S.E. 813 (1919). The existence of the equally accessible stairway negates the applicability of this doctrine as well.
  The trial court found that Aero violated no duty owed the plaintiff-appellant. Additionally, it was found that plaintiff was contributorily negligent in his failure to observe that the “man-lift” had reached the top floor.
  We cannot say that these findings are clearly erroneous. See Rule 52, F.R.Civ.P. Nor do we find any error of law. Since the findings of an absence of defendant’s negligence and appellant’s contributory negligence adequately dispose of the instant case, we express no opinion as to the propriety of the trial court’s decision that appellant’s action also constituted assumption of risk.
  Accordingly, the judgment of the District Court is affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama