In my opinion the complaint should not have been dismissed at the close of the plaintiff’s case. The issues of plaintiff’s contributory negligence, if any, and the duty of defendant to furnish him with a safe place to work (Labor Law, § 200) were factual questions that should have been submitted to the jury.
*259It appeared from the proof that plaintiff’s employer had contracted with defendant to service and repair an elevator in premises owned by the latter. The top of the elevator was covered by panels of heavy gauge wire and these panels were set in iron channels or frames around the perimeter of the elevator. The Administrative Code of the City of New York provides that such a cover “ shall be sufficiently strong to sustain a load of one hundred fifty pounds applied on any four square inches ” (§ C26.978.0). It is conceded that the primary purpose of the cover is to prevent objects from dropping into the elevator but a former Supervising Inspector of elevators in the Department of Buildings testified that it was an accepted custom and practice for such covers “ to be used as a working platform in connection with the greasing and minor repairs that have to be made in the shaftway.”
On service visits prior to the accident plaintiff observed that the wire screens were not fastened to the frame in the proper manner but were held in place by wire and rope. He also observed a plank some six feet long lying underneath the cross-head that spanned the elevator. Plaintiff complained to defendant’s employees about the condition of the panels. On a subsequent visit he was informed that defendant had been informed of the defects and was told to use the plank to stand upon.
It is plaintiff’s version that on the day of the accident he worked from the crosshead or the iron frame; that after finishing his work he lowered himself from the crosshead to the plank which moved causing him to lose his balance. He then stepped on a screened panel which gave way and he fell 11 feet to the floor of the elevator.
There is here no disagreement apparently with the principle that the owner occupant of a building has the affirmative obligation of providing a safe place for the work of the employees of an independent contractor properly on the premises. (Caspersen v. La Sala Bros., 253 N. Y. 491; Gasper v. Ford Motor Co., 11 A D 2d 902, 903; Gabbamonte v. 16-20 West 19th St., 14 A D 2d 518.) The general rule is recognized that if the risks and danger are obvious and comprehensible through ordinary and reasonable care and inspection there is no duty on a defendant to save the one injured from them. (McLean v. Studebaker Bros. Co., 221 N. Y. 475, 479; Employers Mut. Liab. Ins. Co. v. Di Cesare & Monaco Concrete Constr. Corp., 9 A D 2d 379, 385.)
But in the instant case the facts do not permit an easy application of this latter principle. Here the triers of the fact might have found that some months before the accident defendant was warned of the dangerous condition and promised to make *260repairs. This it failed to do. A code provision mandated a screen sufficiently strong to sustain a weight-bearing load that would have supported with ease this 142-pound plaintiff. Thus upon subsequent visits plaintiff was forced to avoid contact with the screened panels. Thereby he was compelled to perform his work standing on the crosshead or at a lower level by balancing himself on the frames or channel irons which surrounded the screened panels and were two and one-half or three inches wide. The foreseeable happened when a makeshift plank moved causing plaintiff while off balance to step on one of the jerry-rigged screened panels with the resulting fall and injuries.
In the light of these facts it is submitted that it should not be held as a matter of law that defendant had discharged its duty to furnish plaintiff with a safe place to work (Robinson v. Avella, 10 A D 2d 130, 132; Gibson v. Shanks Constr. Co., 10 N Y 2d 840) or that plaintiff was guilty of contributory negligence. (Kaplan v. 48th Ave. Corp., 267 App. Div. 272; Pezzo v. Paterno, 302 N. Y. 884, revg. 277 App. Div. 496.) In the Kaplan case (supra) it was said (p. 274): “ Knowledge of the existence of a defect does not necessarily establish contributory negligence. (Citing cases.) One placed in the dilemma of abandoning the reasonable course of his work or assuming a risk will not be charged with contributory negligence as a matter of law if he adopts the latter alternative.” (Citing cases.)
The judgment appealed from should be reversed and a new trial granted.
Rabin and Eager, JJ., concur with Breitel, J.; Bastow, J., dissents in opinion in which Botein, P. J., concurs.
Judgment, so far as appealed from, affirmed, with costs to the respondents.