(dissenting). I agree with, my Brother’s reason why plaintiff cannot recover under count one. Justice Kavanagh states:
“Since the plaintiff was not a party to the contract in any sense of the term, he cannot enforce an obligation created by it. Neither the contract nor any of its provisions was designed to give him a benefit of any kind.”
I disagree with his finding that plaintiff can rely on that same contract to maintain his action in tort.
No decision of this or any other State has been called to attention that would give the right to plaintiff to rely upon and prove the provisions of a contract between defendant and a third party to sustain plaintiff’s right of action in tort against defendant.
There are decisions to the contrary. In Hampson v. Larkin, 318 Mass 716 (63 NE2d 888), the supreme court of Massachusetts considered an appeal where the defendant had contracted with a Catholic bishop to reconstruct a parochial school. The contract provided that sufficient, safe, and proper facilities for the inspection of the work by the architect or his authorized representative would be furnished at all times by the defendant.
Plaintiff, who had been employed by the bishop to inspect defendant’s work, was injured when a ladder slipped and plaintiff fell. Plaintiff commenced action in tort against defendant contractor. The jury found for defendant, and plaintiff appealed, assigning error because the court instructed the jury “that the defendant must use reasonable care to have the instrumentalities used in connection with his work reasonably safe and that the duty owed by the defendant to the plaintiff ‘so fa,r ns the furnish*267ing of facilities * * * is concerned,, was not varied or heightened by any * * * contract’ between the- defendant and the bishop.”
Plaintiff excepted to this instruction, claiming that-the above mentioned provision of the contract must' be considered in determining the duty owed by the défendant to plaintiff and that under it the defendant became an insurer that safe and proper facilities would be furnished. The supreme court stated: -
“"We do not agree. The plaintiff was not a party to this contract and cannot enforce ah. obligation, created by it, that the defendant owed to the bishop.”
In Dallas Hotel Co. v. Fox, 196 SW 647, the Texas Court of Civil Appeals considered a case where plaintiff Pox’s husband died as a result,-of injuries received in an elevator mishap. The widow claimed defendant should be held liable for the injuries because defendant had contracted with plaintiff’s decedent’s employer to keep the elevator in repair. The court, considering plaintiff’s right to use the employer’s contract to prove defendant’s negligence, stated (p 651) :
“Negligence which consists merely in the breach of a contract will not afford a ground of action by any one who is not a party to the contract nór a' person for whose benefit the contract was avowedly made. '* * * The true question is, Has the defendant committed a breach of duty apart from the contract ? If he has only committed a breach of the contract he is liable only to those with whom he has contracted; but if he has committed a breach of duty he is not protected by setting up a contract'in respect to the same matter with another.”
In Tuttle v. George H. Gilbert Manufacturing Co., 145 Mass 169 (13 NE 465), the Massachusetts supreme court held (p 175):
*268“As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. * * * If the defendant had performed the work contemplated by its contract unskillfully and negligently, it would be liable to an action of tort, because in such case there would be a misfeasance, which is a sufficient foundation for an action of tort.”
There is no claim in this appeal that defendant performed the work “unskillfully and negligently,” and the Court of Appeals comments on that fact as follows:
“Defendant had, in full compliance with requirements of the contract, coated the entire ladder up to about two feet from the roof with this NO-OX-ID. * * * The plaintiff does not claim that the wrong-compound was used or that it was improperly applied.” (Emphasis ours.) 1 Mich App 513, 516, 517.
Courts have recognized the right of plaintiffs to sue in tort where a contractual relationship exists between plaintiff and defendant, but even though that relationship existed in this appeal, plaintiff did not present evidence that would sustain an action in tort.
We quote with approval the concluding paragraphs from the opinion of the Court of Appeals (p 521):
'“This Court finds that the failure of the defendant to notify Williams & Works of completion of the various stages of the work on the water tank was not unreasonably dangerous conduct.
“ ‘In. order that the plaintiff may recover it must appear that his injury was the natural and probable consequence of a negligent act or omission of the *269defendant which under the circumstances an ordinarily prudent person ought reasonably to have foreseen or anticipated might possibly occur as the result of such act or omission.’ Clumfoot v. St. Clair Tunnel Company (1902), 221 Mich 113, 116.
“The record shows that the plaintiff knew the contract required the defendant to coat the interior of the tank, including the ladder, with NO-OX-ID, and that plaintiff had been in the tank on two occasions prior to his accident. Plaintiff himself testified that he had extensive éxperience in the inspection of water tanks. This Court concludes that the defendant could not reasonably have foreseen or anticipated plaintiff’s accident as the result of his failure to give the contractually required notice to plaintiff’s employer.
“The judgment of the trial court of no cause of action is affirmed, and costs are awarded to the appellee.”
2.
Appellee presented to this Court in his “counter-statement of questions involved” the following questions :
“Was the appellant guilty of negligence as a matter of law which was a proximate cause of his injury when he entered into a dark tank without taking precautions for his own safety?”
We quote the following from appellee’s brief filed in this Court:
“Taking the appellant’s own testimony most favorably to him, appellee contends that the appellant is guilty of contributory negligence as a matter of law. This question was presented • both to the trial court and the Court of Appeals. However, in both courts the question was not decided. The decision in both the trial court and the Court *270of Appeals was based upon tbe lack of a legal duty-owing by the appellee to the appellant. If this Court should feel otherwise, however, then a consideration of the question herein presented [contributory negligence] would be properly before this .Court.”
We agree with appellee’s contention in this regard.
Plaintiff testified:
“I went up the outside ladder on this leg of the tank here to the cat walk and I went up this other ladder from the cat walk up to the roof. I looked in the opening here which was open and I couldn’t see anything so then I proceeded to climb down inside. And I was inside — -probably my head was two or three feet under the roof of the tank when I was reaching for my flashlight to see if I could see anything inside the tank. And my feet went out from under me and I was falling, slipping toward that hole in the center of the tank, that riser pipe. So in my falling I was reaching for something and I grabbed one of these bars with my right arm and I was able to haul myself back out of the pipe and climb back out this ladder and down to the ground. * * *
“Q. You testified you looked down into the tank and you could not see anything in the tank. What was the appearance as you looked down in there?
“A. There wasn’t — there wasn’t anything to see. It was just as black as coal.” (Emphasis ours.)
We established that one must make a reasonable use of his faculties to discover dangerous conditions in Rice v. Goodspeed Real Estate Co., 254 Mich 49, and stated (p 55):
“There is almost unlimited authority in adjudicated cases covering the following propositions: (1) One is required to make reasonable use of his faculties of sight, hearing, and of intelligence to discover dangerous conditions to which he is or he may be*271come exposed. (2) One who knows or in the exercise of ordinary care should have known the existence of danger from which injury might reasonably be anticipated and who by his voluntary acts or omissions exposes himself to such danger is guilty of negligence, if under the circumstances an ordinarily prudent person would not have incurred the risk of injury which such conduct involved. (3) Momentary forgetfulness of or inattention to a known danger may, and usually does, amount to negligence.”
In Steger v. Immen, 157 Mich 494 (24 LRA NS 246), our Court commented upon entering dark areas where you can see nothing, and said, at page 498:
“ ‘If it was so dark in there that he could “see nothing,” it was certainly an act of folly on his part to enter on a cruise of exploration and discovery without stopping to determine whether it was safe to proceed.’ ”
In Jones v. Michigan Racing Association, 346 Mich 648, we spoke about taking unnecessary risks, as follows (p 652):
“The testimony, construed in the light most favorable to plaintiff, discloses that at least the latter 2 choices, if not the first, were open to plaintiff and that it was or should have been apparent to him at the time that any of them involved less risk than the course actually pursued by him. Defendant urges that it was contributory negligence for plaintiff not to have selected one of these safer courses. Support for that contention is clearly expressed in Lake S. & M. S. R. Co. v. Bangs, 47 Mich 470 (4 Am Neg Cas 29); Rohlfs v. Township of Fairgrove, 174 Mich 555; Burchard v. Otis Elevator Co., 261 Mich 142.”
*272We quote with approval the following statement of the trial court:
“The testimony of Mr. Clark is the same in respect to both counts. He went there to inspect, to discover what conditions existed, and it seems to the court that the minds of reasonable men would not differ as to what his duty was at that time. He had no right or reason to rely upon any state of facts, or any condition, because he admits that he is going to the job to discover what conditions exist.”
We agree with defendant and appellee that taking the appellant’s own testimony most favorably to him, appellant is guilty of contributory negligence as a matter of law.
The judgment should be affirmed. Costs to appellee.
Brennan, J. took no part in the decision of this case.