DISSENTING OPINION
SKEEL, J.(Dissenting)
This action comes to the court on questions of law from .a judgment for the plaintiff entered in the Common Pleas *266Court. The plaintiff was employed as an operating engineer by The Western Foundation Company. The Western Foundation Company prior to July 25, 1942 entered into a contract with The Republic Steel Corporation as agent of The Defense Plant Corporation to “furnish materials, labor and equipment and perform the work for the driving- of piles on a site to be provided by owner at or in the vicinity of Cleveland, Ohio, all in accordance with the drawings and specifications to be furnished by the agent.”
In carrying out its contract with The Republic Steel Corporation as agent for the Defense Plant Corporation, The Western Foundation Company, together with other equipment, delivered to the place where the pile driving was to be done a “Marion M21” steam shovel which had been converted into a pile driver in accord with the instructions of the president and general superintendent of said Western Foundation Company. The plaintiff, as an employe of The Western Foundation Co., was assigned to operate this pile driver. As redesigned to be operated as a pile driver, the boom had been-removed or replaced by one forty feet long to which was attached hammer leads sixty-five feet in length and which extended twenty-five feet above the top of the boom. The hammer leads formed a track in which the five-ton steam hammer travelled as the force of its blows were expended in driving the piling.
The plan of the foundation that was being constructed by the driving of these piles required that the piles be driven at an angle of thirty degrees. For the purpose of seeing that The Western Foundation Company carried out its obligations under the contract in an acceptable way, the contract provided that:
“The contractor shall at all times during the progress of the work, keep at the site thereof a qualified representative, satisfactory to owner, who shall receive and execute on the part of contractor such notices, directions and instructions as owner or agent may give. * * *”
The first paragraph of the contract provides:
“Owner shall designate a responsible field representative.”
The record discloses that while the pile driving rig which the plaintiff was operating was being used to set a pile in place for driving, the rig upset, throwing the plaintiff out on to the superstructure, whereby he received severe personal .injuries. *267From the judgment, entered for the plaintiff upon the jury’s verdict, the defendant appeals, claiming:
1. That the judgment is contrary to. law and manifestly •against the weight of the evidence and was influenced by passion, prejudice and sympathy.
2. That the court erred in overruling defendant’s motion for judgment at the end of plaintiff’s case and at the conclusion •of the taking of all of the evidence in the case.
3. 'That the court erred in failing to rule, that The Western Foundation Company was an independent contractor as a matter of law and in submitting that question to the jury.
4. That the verdict was excessive.-
5. That the judgment should have been for the defendant for the reason that plaintiff was an employe of The Western Foundation Company an independent contractor, who ■ had •complete supervision and control over the manner and means by which the work was to be done.
6. Misconduct of plaintiff’s counsel and for the court’s refusal to grant defendant’s motion to discharge the jury for the reason that there was no evidence of heart condition and such claim was not pleaded.
7. In failing to give defendant’s request to charge Nos. 3, 5, .& 6, and in giving plaintiff’s requests Nos. 1 and 2.
The legal theories upon which the plaintiff depends for the right to recover in this case are three in number.
The first claim is that one of defendant’s servants gave the signal and participated in the negligent acts which-caused the pile driver that plaintiff was operating, to turn over and that defendant is therefore legally liable by reason of its meddling interference and direct participation in the work, even though the work was being accomplished through the agency of an independent contractor; and second, it is the claim of plaintiff that by the contract between The Republic .Steel Corporation and The Western Foundation Company, the defendant had the right to specify the mode and manner of equipment to be used and therefore was negligent in failing .to order the removal of the “Marion M 21” pile driver which machine was unsafe and was responsible for plaintiff’s injuries. Third, it is claimed that even though The Republic Steel Corporation did not, by its contract with The Western Foundation Company, reserve the right to specify the equipment and the power to order the removal of defective equipment, yet, when it became apparent to The Republic Steel Corporation that its contractor, The Western Foundation Company, was using *268dangerous and unsafe equipment, it then became the duty of The Republic Steel Corporation to prevent its use.
The evidence in support of,these contentions tends to establish that ah employee (who was employed as a field inspector) of The Republic Steel Corporation, among other things supervised the angle at which the piles were driven into the ground, selected the piles to be driven, kept measurements of the length of the piles as they were driven into the ground, counted the number of hammer blows required'to sink or drive the piles one foot when the piles were driven to their full length to test the resistance, and on occasion gave signals to plaintiff as operating engineer of the pile driver while the crew was in the process of putting another pile into the leads and on other occasions to increase or decrease the striking power of the hammer. The plaintiff’s witnesses also testified that this inspector gave the hand signals to raise the pile into the leads and then lower the hammer at the time the pile driver overturned', and that he selected that particular pile to be driven at that particular place, which was a longer pile than had theretofore been used, requiring the hammer which weighed five tons to be elevated to the very top of the leads. The inspector denied this claim of the plaintiff.
The plaintiff further introduced evidence tending to establish that the “Marion M 21” pile driver was unsafe and would be likely to turn over if the hammer was raised to the top of the leads and that this fact was reported to defendant’s engineer in charge. The plaintiff testified that on -the occasion of the accident, the hammer had been raised to. put the pile into the leads and then at the signal from defendant’s inspector it was lowered over the pile and as said inspector signalled to stop the lowering of the hammer he put on the brakes causing a jar and the pile driver then tipped over.
Plaintiff’s claim that The Republic Steel Corporation by its contract “specified the mode and manner of equipment to be used in the work and had the right to prevent or forbid the use of the defective crane” is not supported by the contract. Article 1, paragraph 1, supra, puts the entire responsibility of furnishing “f * * labor and equipment * * * to accomplish the work contracted for :f * * in accordance with the drawings and specifications to be furnished by the agent * * *” upon The Western Foundation Company. This is the only place. in the contract that deals with this subject. Plaintiff’s contention that the defendant by this provision of the contract was required to furnish drawings and spécifications as to the equipment to be used by The Western Foundation Company cannot be supported by Article 1, Section 1 of the contract.
*269The extent of the conduct of the defendant’s field inspector whose conduct is depended upon by plaintiff to establish that The Republic Steel Corporation is liable as a tort feasor because it meddled, interfered and directly participated in the acts causing plaintiff’s injuries, have been heretofore set forth. Plaintiff in its brief suggests that the pile that was being set for driving at the time of the accident was “oversize” and that directing its use constituted negligence. There is no evidence which would establish or even suggest this conclusion. The piling for the job was unloaded from cars by the plaintiff’s employer. It was in varying lengths. The pile in question was 52 feet long, some four feet longer than any that had been used up to that point, but there is no evidence that its use was not necessary or required to accomplish the results desired in building the foundation for the blast furnance to be built on the site.
The conduct of defendant’s inspector does not establish that The Republic Steel Corporation took charge of and directed the work of The Western Foundation Company. If it be established that he conducted himself as claimed by the plaintiff, his acts created no new danger. The owner of the property or his agent has the right to exercise control over its general contractor to the extent necessary to secure compliance with the contract as detailed by the plans and specifications. (Hughes v. C. & S. Railway Co., 39 Oh St 461; Kleer v. Erie Railway Co., 118 Oh St 612.) And if it be established that defendant’s inspector signalled the plaintiff with respect to the operation of the pile driver, in placing a pile in the leads, such conduct could not be said to be supervisory in character and could not be said to establish an attempt to take charge of or direct the contractor’s employees in carrying out their duties under the contract. Nor could such conduct be said to be a proximate cause of the falling of the pile driver. What was done was no more than what the contractor was required to do and accomplish and in the manner contemplated.
In the case of Steinman v. Pennsylvania Railroad Company 54 Fed. 2d, 1052, a foundation company was employed to build concrete piers for a railroad bridge, the contractor to furnish all labor, material and equipment. The railroad employed inspectors to see that the contractor carried out its obligations under the contract. At one point the inspector told an employee of the Foundation Company to provide scaffolding. The employee said there was not sufficient lumber of the proper size and grade to construct a safe scaffold. He did, however, follow the inspector’s instructions to build the scaffold and with what lumber was at hand. Another em*270ployee was injured when the scaffold broke. Paragraphs 3 and 4 of the headnotes provide:
“3. That independent contractor’s servant was sent by contractee’s inspector to do certain work, did not make him contractee’s servant pro hac vice.
4. Whether there is such assumption and change of masters as to create corresponding change of liability depends on whose work is being performed, usually answered by ascertaining who controls servants.”
“In this connection there must be a careful distinguishing between authoritative direction and control and mere suggestion as to. details or necessary cooperation where work furnished is part of a larger undertaking.”
All of the cases upon which the plaintiff relies to establish the liability of the defendant because of the claim that the defendant meddled, interfered and directly participated in the aets.causing plaintiff’s injury are clearly distinguishable.
The case of Pender v. Raggs, 126 Penna. 337, an independent contractor in constructing a foundation for a stack, advised the owner after the ground was excavated that a wall which was already on the premises next to the excavation would be dangerous and should be removed. The employer insisted that 'the work proceed without a removal of the wall. The wall fell and .the court held that, it was a jury question as to whether or not the owner was negligent.
Here the danger was the result of the owner’s conduct with respect to. a matter entirely outside of the contract with the plaintiff’s employer and had to do with the. duty of the employer of an independent contractor to furnish a safe place in which to work insofar as that can be done when taking into consideration the character of the work to be accomplished by the contract.
The ground of liability in McGrath v. Penn. Sugar Co. 127 Atl. 780 was because the owner directly instructed the, employe of the subcontractor to do the work in such a manner as to create the dangerous condition which caused the injury.
In the case of Ellinghouse v. Ajax Live Stock Co. 152 Pac. Rep. 481 the plaintiff’s employer contracted with defendant :as an independent contractor to saw certain logs. A foreman of defendant, not being satisfied with the way one of the independent contractor’s employees was doing the work, took charge of the saw himself and while actually taking the place of one of the sub-contractor employees and doing such employee’s work, negligently injured the plaintiff.
*271Paragraph 12 of the headnote provides:
“Where an employee is injured by the negligence of a coworker who is a servant of a stranger to the employment, the /master of such co-worker is liable for the injury if the negligent act was within the general scope of the co-worker’s duty to his master.”
Inasmuch as the only acts claimed by plaintiff on the part of defendant’s field inspector had to do either with seeing to it that its contractor carried out the terms of the contract in doing the work therein called for, or in lending occasional assistance in the performance of menial tasks about the contractor’s work, such conduct could not in any sense be considered as directory in character. The plaintiff’s claim that the defendant meddled or interfered with work whereby it could be charged with the negligent use of defective equipment by the contractor is not supported.
The final claim of plaintiff; that even though the contract between The Western Foundation Company and The Republic'Steel Corporation did not reserve the right to specify the equipment to be used by the Western Foundation Company, yet if during the progress of the work The Republic Steel Corporation learned that the equipment which the Western Foundation Company was using was unsafe to use it was the duty of the Republic Steel Corporation to prevent the danger.
The evidence is undisputed that The Western Foundation Company an independent contractor, brought the pile driver in question upon the premises of The Republic Steel Corporation for the purpose of carrying put the work it had contracted to do. It was equipment belonging to the Western Foundation Company over which the defendant had no control. The plaintiff whom The Western Foundation Company employed to operate it was a man of many years experience as the operator of a pile driver, having worked for many nationally known contractors from coast to coast and who had operated this particular pile driver for about five.weeks before the accident. Nowhere in his testimony does he even suggest that the pile driver was unsafe.
The plaintiff’s evidence was to the effect that an assistant superintendent in charge of pile driving for The Hunkin-Conkey Construction Company, another contractor working on this job, reported to a plant engineer of The Republic Steel Corporation that this pile driver was, in his opinion, unsafe under the circumstances under which it was being used. It is con*272tended therefore that The Republic Steel Corporation was negligent in permitting The Western Foundation Company, an independent contractor, under contract with the Defense Plant Corporation, for whom The Republic Steel Corporation acted as agent, to continue to use pile driver and its negligent failure to prevent the use of such unsafe pile driver was a proximate cause of plaintiff’s injuries. >
The plaintiff, in support of his contention that there was a legal duty on the defendant to intervene under such circumstances, relies on the case of Keehn v. P. J. Carlin Construction Co. Inc. 278 N. Y. Supp. 635. The facts in that case are clearly distinguishable from the case here under consideration. There, the defendant construction company employed the owner of a boat as an independent contractor to transport its (The construction company’s.) employees to an island to their place of employment. It was brought to the attention of defendant that the boilers of the' boat were unsafe. The defendant failed to act on such notice — the boilers exploded and plaintiff’s decedent was drowned. The defendant could not avoid the duty of exercising ordinary care as to the safety of its employees in carrying out its duty to transport them to their place of employment and such duty could not be avoided by entering into an agreement with an independent contractor to carry out that part of the employer’s obligation to his employees when it had knowledge that such independent contractor was carrying out the agreement in a negligent fashion.
The plaintiff also relies on the case of Rosenberg v. Schwartz 260 N. Y. 162. The facts in this case give no. assistance to plaintiff. Defendant, a general contractor, employed a subcontractor to do the brick on a building he had contracted to construct. The New York Building Code provided the outside scaffold should be enclosed upon the outer edge. The subcontractor failed to enclose the scaffold as required by law, a piece of brick fell from the scaffold and hit plaintiff who was at play in the yard next to where the building was being constructed. Here the duty of the principal contractor to protect the public in the manner provided by law from the dangers created by the construction of the building, was the primary question, it being a reasonable deduction from the evidence that he was fully informed as to the failure of his sub-contractor to comply with the law. Neither of these cases has to do with the circumstances of claimed defective and unsafe subcontractor’s equipment by an employee of such sub-contractor.
The Supreme Court of Ohio clearly set forth the extent a principal contractor’s liability with regard to the negligent conduct of an independent contractor, resulting in in*273jury to the sub-contractor’s agent, in the case of Bossnak v. Steel Co. 145 Oh St 538. At page 542 of the opinion the court said:
“The owner has the further duty of exercising reasonable care to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee. Such duty, however, has reference only to. the owner’s plant and premises and not to the contractor’s equipment. 2 Shearman & Redfield on Negligence (Rev. Ed) 688, Sec. 279; 38 Amer. Juris. 754; — Sec. 96; Prosser on Torts 635 ; 29 O. Jur. 465, Sec. 61.”
“Numerous cases are cited by these authorities, supporting the general proposition 'above stated.
2 Sherman & Redfield on Negligence (Rev. Ed) 688, Sec. 279 stated the rule thus:
‘An occupant of land owes to the servants of an independent contractor, employed to do work thereon, the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work. But the common, law duty to furnish a safe place to work, even as extended by statute to. include the tools and appliances without which the place to work would be incomplete for the purpose intended, refers to the owner’s plant and not to the contractor’s equipment. * * * The law requiring an owner to keep the place reasonably safe for a contractor and his subcontractors, does not apply where the work itself is of an unsafe nature, or the defects are due to the imperfect and negligent work of the contractor himself.’
“Hozian, an infant, v. Crucible Steel Casting Co. 132 Oh St 453, 9 N. E. (2d) 143, 112 A. L. R. 333, and cases cited are also in point. See, also, Davis v. Chas. Shutrump & Sons Co 140 Oh St 89, 42 N. E. (2d) 663.”
In the Restatement of the law of Torts, Vol. 2 (Negligence) Page 1146, parag. 426, the rule is stated as follows:
“Except as stated in parag. 427 to 429, an employer of an independent contractor is not liable for bodily harm caused by any negligence of the contractor which does not effect the result which the employer is under a duty to have attained but consists solely in the improper manner in which the contractor does the .detail of the work necessary to attain such result.”
*274The subjects considered in parags. 427, 428 and 429 do not in any way involve the facts in this case.
Also, in the Restatement of the Law of Torts, supra, at page 1102, parag. 410, in considering the subject of Contractor’s conduct in obedience to employer’s directions, we find at page 1103:
“He is not subject to liability for any harm caused by some improper method which the contractor without any direction of his employer adopts in doing the work.”
It must be concluded, therefore, that the plaintiff’s third contention cannot be maintained.
The court during its charge to the jury left the legal interpretation of the meaning of the contract between Western Foundation Company and The Defense Plant Corporation for the jury to determine. There was no controversy as to the provisions of the contract. The court was in error, therefore, in not directly stating to the jury the obligations imposed upon the parties by such agreement.
For the foregoing reasons the judgment should be reversed and final judgment rendered for the defendant appellant.