There is no disagreement with the general proposition of law, as stated in the majority opinion, that contributory negligence is a defense in a case submitted on the theory of res ipsa loquitur. This dissent is based on the fact that nowhere in the record is there any evidence which would justify the defense of contributory negligence. There is not one shred of evidence tending to show that something was dome by the decedents which contributed to the explosion resulting in their deaths.
The majority agrees that the cause of the Occident was not established and it is not known what triggered the explosion. That being so, how can it be argued that something which the decedents did contributed to the occurrence 1 If this were the fact, certainly the defendant should be in a position to point to the specific actions of the decedents which brought about, or contributed to bringing about, this tragic result. This is especially so when we keep in mind that, in a death action, the defendant has the burden not only of alleging the contributory negligence of the decedent, but, also, to prove it. One searches in vain throughout this entire record for any proof whatever which would reasonably justify a finding of contributory negligence.
The attempt of the defendant to spell out such contributory negligence from the fact that, on some occasion prior to the date of the accident, the supervisor of the decedents and representatives of the defendant had agreed to have the work performed while the current was still on, is far-fetched. As against this claim, let us examine the testimony of the witness, Alfred W. Sacco.
This witness was employed by the defendant as the supervisor of electrical power and he was responsible for ‘ ‘ the maintenance and operation of the electric end of the 74th Street plant ”. (p. 129 of record.) He had been in this very same position since *173August 1, 1959, at which time the defendant took over the plant from the City of New York. In fact, the witness, Sacco, had been employed by the city in the same capacity since 1954.
Sacco was called by the plaintiffs as a witness in their behalf and, at page 399 of the trial record, we find the following:
‘ ‘ Q. The question I then put to you, did you have any reservations in your mind as to whether or not it was completely safe for the men to do this job with the power on? A. I had no reservations.
“ Q. Would you have gene to that box yourself as an electrician, and done the work on that box with the power on? A. Yes.
“ Q. You would have? A. Yes.”
One can well understand this testimony of Sacco when we consider that the decedents’ work involved only the outside of the switch-box and they had nothing to do with the interior contents of that box. In this connection this same witness, Sacco, testified that, when the handle and the plate were taken off, the switch on the inside could not move. At pages 384-385, on cross-examination, the witness was asked:
“ Q. * * * Now, when you took this handle off, this inside switch was left on its bearing, and whether it moved one way or another was a matter of chance at that time? A. No, it was not.
“ Q. It couldn’t move? A. No.
“ Q. When you took the plate off, it could not move? A. No, sir, could not move.
“ Q. When you took the handle out, was that handle resting upon some pivot on the inside? A. Yes, it was. * * *
“ Q. Was that pivot a free agent? A. No.”
At pages 387-388:
“ Q. Was there some contact annexed to that transformer to which the power was communicated? A. Not at the time the men were working. * * *
“ Q. And if as a result of the removal of that handle, these points that contained the power — whether we call them contacts or whether we call them something else—if they came in contact with some metal, they could cause a short, couldn’t they? * * * A. Physically it would be impossible to make contact with ground with that switch. That is my feeling; that is my opinion.”
Further evidence that the removal of the lever by decedents could not have activated the interior of the switch box was the testimony of Mr. Sacco, that the interior electrical contact plates had been separated from the bushing on the pivot before the decedents started their work. This was accomplished by placing the lever in an open position and, even after the explosion *174occurred, these contact plates were found in the same separated position. This was corroborated by the examination before trial of David M. Bradt, a portion of which was read into the record at the trial, page 124: “ I know that there was no power flowing through the switch, that the switch was open, to back this up, the main breaker on the low side was out of position, so that no power could go through.”
It is clear that all of the work of the decedents was to be accomplished from the outside of the switch box with no need for getting inside of it and, therefore, it was completely safe. At page 144 defendant’s supervisor, Sacco, testified: “ well, this whole compartment and handle is on ground potential and it’s as safe to touch as anything is safe in this room. ’ ’
In the case of Hinds v. Wheadon (19 Cal. 2d 458, 461, 462), which involved the explosion of a tank, in rejecting the contention of the defendants that they were not in exclusive control at the time of the explosion, the court said (pp. 461-462): “ The work done by deceased on the outside of the tank had no relation whatever to the complicated system of valves and pipes which regulated the water level within the tank and, insofar as the matter can be determined upon the evidence introduced by plaintiffs, such matters were within the exclusive control of the defendants.”
Accordingly, in the case at bar, the defendant did not lose control of the equipment simply because the decedents were doing some work on the outside of it, having no connection with the flow of electric current on the inside. (See Kane v. Ten Eyck Co. 10 Misc 2d 398, affd. 267 App. Div. 789, affd. 292 N. Y. 701.)
The reasoning of the defendant seems to be that, since the injured party was doing some work on the outside of the switch box and despite the absence of any proof that this work had any causal relation with the explosion, the rule of res ipsa loquitur cannot be applied because the defendant, under the circumstances disclosed, did not have exclusive control. This is not the law. (Jesionowski v. Boston & Maine R. R. Co., 329 U. S. 452.) At page 457 of the last cited case, in discussing a similar argument advanced by the defendant in that case, the court said: “ We cannot agree. Bes ipsa loquitur, thus applied, would bar juries from drawing an inference of negligence on account of unusual accidents in all operations where the injured person had himself participated in the operations, even though it was proved that his operations of the things under his control did not cause the accident.”
There can be no doubt that, under the law, the defendant owed to the decedents the duty of exercising reasonable care to *175see to it that the place of their work was made safe from the electrical hazards which could flow from the operation of defendant’s power equipment. In order to protect the decedents against these hazards the defendant, through its employees, particularly the witness, Sacco, and Mr. Kane, the latter described as the access and protection man, gave assurances that it would open the switch box, it would open the circuit-breaker attached to the substation A-l-1 transformer and also open the tie-breaker connecting the A-l-1 to A-l-2.
The evidence clearly shows that the electric current in this plant was controlled from a so-called control room which was under the direction of Sacco and his staff. No one can really believe that the current was within the control of the three decedents. They had nothing at all to do with the electrical current. They had a right to assume that the defendant would so control its current as not to endanger them while they were working.
The witness, Sacco, testified that, on the Friday preceding the Monday when the accident occurred, he had executed a worksheet and he ‘1 gave it to the operating department, and they were to follow through to provide the protection for the men to work on that equipment. That’s how the procedure usually worked.” (Emphasis supplied.) (p. 187.) Again, on the same page, we find the following:
“ Q. On Monday, when the men came, so far as the lock part of the handle was concerned on the A-l-1 station, was it or was it not in a locked position? * * * A. I really can’t say.”
And, when the witness was pressed, at page 189, he said: “ I don’t know what position it was, but I’ll assume it was.”
Again, at page 191: “ The Court: Weren’t you to see that everything was done properly ? Wasn’t that part of your duties ? The Witness: But I don’t make the inspection. I don’t do the work.” It seems to me that someone should have known what was done to the equipment involved in this case before the three decedents were allowed to work on it. The defendant was “ to provide the protection for the men to work on that equipment ”. Why did it not adduce evidence to show what was done in providing that protection? Since Sacco did not do the work necessary to protect the decedents, who did? Why did the defendant fail to produce them, so that the extent of the protection given to the decedents could have been evaluated by the jury? But the defendant called no witnesses and rested at the end of plaintiffs’ case.
In a death case it is settled that the plaintiff is not held to the high degree of proof required in a case where the injured person *176may take the stand and give his version of the happening of the accident (Noseworthy v. City of New York, 298 N. Y. 76). Accordingly, it was incumbent upon the defendant to give its version of the accident.
In Noce v. Kaufman (2 N Y 2d 347, 353) the court said: “ Where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may he drawn against him which the opposing evidence in the record permits ”.
This is not a case where the deceased workmen were called in to repair a defect in the flow of electric current or where the work itself created the danger. Their work had nothing to do with the electric current. The current was at all times within the control of the defendant, through its supervisor, Sacco, and his staff. This is best shown by the fact that, after the decedents were removed from the premises following their fatal injuries, a second explosion occurred at the place where they had been working and this is conceded by the defendant to have been due to its own fault. It calls it an ‘ ‘ operating error ’ ’. From all the evidence in the record, the conclusion is irresistible that the earlier fatal explosion was as much the fault of the defendant, or “ operating error ”, as was the second.
For the above reasons I believe that the trial court erred in submitting the question of contributory negligence to the jury. It should have decided as a matter of law that there was no contributory negligence shown by the defendant and the motion of the plaintiffs to dismiss this affirmative defense should have been granted. (Callahan v. Syracuse Tr. Corp., 16 A D 2d 746; Perry v. Bosch-King Co., 267 App. Div. 350.)
In the case of Callahan v. Syracuse Tr. Corp. (supra) the court said: ‘ ‘ There was no evidence from which contributory negligence could have been found and it was error for the court to submit that question to the jury. The jury, in an endeavor to follow the charge of the court, may have concluded that the negligence of the plaintiff contributed in some manner to the accident, and based the verdict on that conclusion.”
Further, on this record, with contributory negligence out of the case, I believe that the evidence so preponderates in favor of the plaintiffs that the jury’s verdict for the defendant could not have been reached on any fair interpretation of the evidence.
I vote to reverse and grant a new trial.
Stevens, J. P., and Rabix, J., concur with Eager, J.; Oaeozzoli, J., dissents in opinion.
Judgments affirmed without costs or disbursements.