(dissenting). Plaintiff-respondent, an employee of a painting contractor, has been awarded a verdict of $40,000 for injuries sustained while engaged in painting the steel framework of defendant-appellant’s electrical substation. This substation was maintained by appellant for the receiving and distribution to its customers of high voltage electric power. It consisted of an open steel structure containing transformers for the reduction of power from 115,000 volts to 34,500 volts, and various conductors, switches, high tension wires and other equipment for the distribution of power at the reduced voltage over its various transmission lines.
The accident occurred at the south end of the structure, which consisted of two vertical steel uprights twenty-two feet apart, supporting two horizontal six-inch I beams. On the lower beam was mounted the so-called “ main bus ” consisting of three copper pipes, which were de-energized or “ cold ” at the time of the accident. Suspended from the upper beam was the so-called “transfer bus” which was energized, or “hot”. The lower beam was eighteen feet above the ground and the upper beam twenty-six feet above the ground. The hot transfer bus was approximately five feet nine inches above the top of the lower beam. It is conceded that a person in contact with a steel beam, and any part of whose anatomy should come within two feet of the hot bus bars carrying this lethal current of 34,500 volts would sustain an electric shock of paralyzing effect.
The plaintiff and two other painters started work in the morning of the day of the accident. They had painted portions of the two I beams which were “ safe ”. Shortly after lunch, the men were directed to remain on the ground and not to do more painting, as certain switching of the electric current was about to take place, which would take forty-five minutes to an hour to do. However, that order was, in effect, countermanded in part. At that particular time, there was a ladder leaning against the lower I beam and located almost directly under the hot transfer bus. A bucket of paint hung on the ladder about three feet underneath the lower beam. There was evidence that the painters, including plaintiff, had received permission from appellant’s assistant superintendent to remove the paint bucket preparatory to using the ladder in removing drop cloths from the insulators before the switch-over of the current.
The plaintiff started to climb the ladder, and within seconds there was a “thunderous noise” accompanied by a “white flash ”, and plaintiff was observed falling from a position near *302the lower I beam. Inasmuch as there were no eyewitnesses and plaintiff has no memory of what occurred after starting up the ladder, and did not regain consciousness until he was lying on the ground with his clothing in flames, he must necessarily rely upon circumstantial evidence to sustain his cause of action.
I feel that the circumstances as proved clearly point to the fact that plaintiff ascended the ladder to a height which permitted him to reach the danger zone some three feet nine inches above the lower beam, and thus to come into contact with the high voltage current.
I do not regard the case as having been submitted under the res ipsa loquitur doctrine. The jury was correctly instructed that appellant owed to respondent, an invitee upon its premises, the duty of using reasonable care to safeguard the respondent while working upon this extremely dangerous structure. Implicit in the jury’s verdict is the finding that respondent failed in its duty to use care commensurate with the risk of danger reasonably to be foreseen.
As I view the evidence, the jury was justified in determining that the oral warnings given to the plaintiff when he first arrived on the premises that morning, pointing out the particular portions of the structure which were energized, and the so-called rope guards, were wholly inadequate in view of the fact that plaintiff was to work in close proximity to the high tension wires. “ When peril lurks, its creator is bound to provide safeguards. Unusual precautions must be taken against extraordinary dangers.” (Van Leet v. Kilmer, 252 N. Y. 454, 457.) The jury might have found that appellant’s assistant superintendent, the person whose duty it was to supervise the painters, left the substation, knowing that it was necessary for one of the painters to climb this ladder. There was, in fact, no supervision whatsoever of plaintiff at the time of the accident.
Neither were any guards, ropes or other warning placed around the transfer bus. The only ropes or flags were attached about two feet below the lower I beam, and consequently would appear to be utterly useless as a protective guard for the transfer bus.
Moreover, the record discloses that appellant by obtaining the use of Shaleton tap, could have rendered the area in question entirely free from danger, although this would undoubtedly have increased the cost of the painting. The appellant having chosen to proceed with the work without this obtainable safeguard, was under a duty to exercise such care as would be *303commensurate with the inherent danger hidden in its high voltage equipment. (Pike v. Consolidated Edison Co., 303 N. Y. 1.)
Likewise I think that plaintiff’s freedom from contributory negligence presented a question of fact for the jury to determine. It is a fair inference that while inspecting the paint or touching up a bare spot before removing the ladder, plaintiff may have relaxed his vigilance for a brief instant, or miscalculated the distance, thereby coming into contact with this hidden peril. (Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345.) In any event, the question of contributory negligence was for the jury.
In my opinion, the finding of the jury as to defendant’s negligence and plaintiff’s freedom from contributory negligence was adequately supported by the evidence. I dissent and vote to affirm.
All concur, except McCurn, P. J., and Wheeler, J., who dissent and vote for affirmance in a separate opinion by Wheeler, J.
Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. [See post, p. 915; 284 App. Div. 835, 860.]