The general rules are that toward business visitors such as workmen, the owner of any premises or structure owes the duty of exercising reasonable care either to provide a safe place in which to work or to warn them of any unusual danger; that, consequently, they are entitled to expect that the owner will use reasonable care to prevent injury "`from unusual danger which he knows or ought to know'", and that an owner is liable to the workmen for bodily injury if the owner "`knows, or by the exercise of reasonable care could discover' the dangerous condition of his premises, and fails `to make the condition reasonably safe, or to warn them of the condition and the risk involved therein.'" ( Haefeli v. Woodrich Eng. Co., 255 N.Y. 442, 448-450; cf. Thomas v. Solvay Process Co., 216 N.Y. 265, 272; Koehler v. Grace Line, 285 App. Div. 154, 156.) To these general rules, however, there are two well-recognized exceptions: An owner is relieved of responsibility either to furnish a safe place to work or to give warning of danger (a) where the structure is defective and the workman is employed for the specific purpose of correcting or repairing the defect, because "[n]o responsibility rests upon an owner * * * to one hurt through a dangerous condition which he had undertaken to fix" ( Kowalsky v. Conreco Co., 264 N.Y. 125, 128), and (b) "`where the prosecution of the work itself makes the place and creates the danger'", that is, where the work is in the construction of the place, as in the case of a lineman who was injured because of a polesetter's negligence in setting a new pole in soft marshy ground, both of them being fellow servants engaged as part of the same gang in the operation of erecting a series of new poles and wires ( Mullin v. Genesee County Elec. Light, Power Gas Co
By the same token, defendant's contention that plaintiff was guilty of contributory negligence as a matter of law cannot be sustained. It appears established that when a person in the capacity of a superior assumes control over a workman on a job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it and, if he stays within the limits of the superior's instructions and is injured, he may not be penalized by a claim of contributory negligence as a matter of law. While, with the Labor Law aside, this issue remains in the case (cf. Koenig v. Patrick Constr. Corp., 298 N.Y. 313) it survives as a question of fact for the jury ( Thomas v. Solvay Process Co., 216 N.Y. 265; Zurich Gen. Accident Liability Ins. Co. v. Childs Co., supra). Since the reversal in the Appellate Division of the judgment against Cauldwell was on "the law and the facts" we may order a new trial (Civ.
The court in Broderick v. Cauldwell-Wingate Co. ( supra, p. 188) very clearly set forth this principle in the following language: "It appears established that when a person in the capacity of a superior assumes control over a workman on a job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it and, if he stays within the limits of the superior's instructions and is injured, he may not be penalized by a claim of contributory negligence as a matter of law. While, with the Labor Law aside, this issue remains in the case (cf. Koenig v. Patrick Constr. Corp., 298 N.Y. 313) it survives as a question of fact for the jury ( Thomas v. Solvay Process Co., 216 N.Y. 265; Zurich Gen. Accident Liability Ins. Co. v. Childs Co., supra)." In this type of case we often find two factors which permit us to sustain liability despite the actor's knowledge of possible danger; the first a direction by a superior to do the act and second, an economic compulsion or other circumstance which equally impels him to follow the direction.
Although contributory negligence does not lessen the negligence of the supplier, it bars recovery from him by the user of the dangerous or defective apparatus. In Thomas v. Solvay Process Co. ( 216 N.Y. 265), the Court of Appeals held that whether a foreman employed by the defendant acted reasonably in failing to call plaintiff's attention to a dangerous condition created by the demolition of an engine house, as well as the claim that the plaintiff was contributorily negligent in failing to observe the condition before he entered the structure, were jury questions. Thereafter, in Zurich Gen. Acc. Liability Ins. Co. v. Childs Co. ( 253 N.Y. 324), the Court of Appeals, per CARDOZO, Ch. J., held that it was for the jury to decide whether the plaintiff in knowingly using a defective elevator assumed a foreseeable risk attendant thereon or whether the assurance he received from the defendant's employee negated his acceptance of the danger.
Having invited the plaintiff to work in a place of danger, the defendants must bear the consequences. ( Thomas v. Solvay Process Co., 216 N.Y. 265; Wohlfron v. Brooklyn Edison Co., 238 App. Div. 463, affd. 263 N.Y. 547.) Furthermore, a careless statement upon which another may be expected to rely and upon which he does act to his damage, may form the basis for a recovery in negligence.
210 N.Y. 634) the question of the method the defendant employed in constructing the building was submitted to the jury. The case of Thomas v. Solvay Process Co. ( 216 N.Y. 265) is somewhat similar to the instant case insofar as the position of the higher court on the question of submission of the case to the jury is concerned. In the instant case, the owner of the premises had entrusted to the defendants the job of tearing down the building on the premises.