Per Curiam.
Plaintiff sued defendant General Motors Corporation and others for wrongful death of her decedent. All defendants, General Motors excepted, were dismissed with prejudice. Trial against General Motors ended with rendition of an instructed negative verdict and entry of a negative judgment. Division 2 affirmed (28 Mich App 7). Other than as amplified in the ensuing opinion, counsel for General Motors have supplied a generally satisfactory statement of facts:
"Michael McDonough, a journeyman iron worker employed by Paragon Bridge & Steel Company, was killed on October 3, 1963 in a construction accident at the Chevrolet assembly plant in Flint. His employer had contracted to erect the structural steel framework for an additional floor which was to be built above the then-existing plant. Sometime before the day of the accident, Paragon had installed several steel trusses which were to become part of the structure. At the time of the accident, Mr. McDonough was standing on one of these trusses. The Paragon crew of which he was a member had just completed the erection and rigging of a stiff-legged derrick, owned by Paragon, which was to be used to lift steel beams onto the roof of the plant. It was then late in the afternoon and it appeared that the derrick would not be used until the following morning. Following the customary practice in the industry, the crew proceeded to tie the boom of the derrick to a permanent truss in order to secure it for the night. While Mr. McDonough was bending under the boom attempting to secure it to the truss the boom fell, due either to careless operation of the derrick or faulty installation of the boom cable. It struck him and caüsed serious injuries which resulted in his death.”
Division 2 did not meet squarely plaintiff’s ap[437]*437peal to the exception which, by our decisions, has been engrafted into the general rule of nonliability of an owner-contractee, when the work contracted for by him is "inherently dangerous”.1 For an up to date statement of the exception, see Vannoy v City of Warren, 15 Mich App 158, 163-164 (1968):
"In Michigan the inherently or intrinsically dangerous activity doctrine is founded upon a theory which is closely akin to, but not exactly the same as, strict liability. The principle is applied 'where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.’ Inglis v Millersburg Driving Association (1912), 169 Mich 311, 321, 322.”
The Inglis decision seems to mark the first occasion when this Court applied the exception to facts tending to show that the work contracted for was inherently dangerous or perilous. In that case the Court approved expressly an extended passage taken from Covington, etc, Bridge Co v Steinbrock & Patrick, 61 Ohio St 215; 55 NE 618; 76 Am St Rep 375 (1899), and then went on to conclude (Inglis at 321-322):
"The principle involved cannot be better stated than it is in the sentence last quoted, supra. It is not applied to those cases where the injuries occur which are collateral to the employment, like the dropping of material by the servant of a contractor upon a person [438]*438passing by, but where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.”
Subsequent cases following Inglis and applying its rule are Huntley v Motor Wheel Corp, 31 Mich App 385, 393 (1971); Vannoy v City of Warren, 15 Mich App 158, 163-164 (1968); Utley v Taylor & Gaskin, Inc, 305 Mich 561, 572 (1943); Grinnell v Carbide Chemicals Corp, 282 Mich 509, 527 (1937); Watkins v Gabriel Steel Co, 260 Mich 692, 695 (1932), and Wight v H G. Christman Co, 244 Mich 208, 215 (1928). Probably the best statement of the mentioned exception to the general rule, succinct and specific as always when written by Mr. Justice Cooley, was quoted in Inglis (from 2 Cooley on Torts, 3d ed, p 1091):
"If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, * * * for I cause acts to be done which naturally expose others to injury.” (Inglis at p 319.)
The foregoing Michigan rule is echoed now by 2 Restatement of Torts 2d, particularly sections 416 and 427 (pp 395 and 415 respectively):
"416. One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
[439]*439"427. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”
The first question is whether plaintiff made out, as against defendant General Motors’ motion below, a case which tended to show that this contract of construction involved "danger to others unless great care is used” and that defendant General Motors failed to see that such "great care” attended execution of the contract.2 We think she did, and that the issue of actionable negligence as charged in the first count of her complaint was for the jury.
True, plaintiff bore a burden of legal persuasion that was, by the very nature of the stated rule and its exception, much heavier than obtains in the typical case where ordinary negligence is charged. There must be proof or inference from proof, not only of contracted work that is inherently dangerous, but also proof or inference from proof that "great care” was not used. We hold that such proof was supplied here.
Generally, and as already known by comparing the ever steepening rates of workmen’s compensation insurance, judicial notice may be taken that the assigned task of overhead riggers and assemblers of heavy steel beams and shapes is usually fraught with out-of-ordinary danger to such employees as well as others. Taking such notice, it is [440]*440prima facie apparent (but no more than that) that the job called for by this contract had to be performed with "great care” lest employees — not only of Paragon but of Chevrolet workmen below — be or become endangered by such performance.
Promptly taken photographs of the scene of this fatal accident were received in evidence. They provide striking proof of the inherently dangerous character of this contracted steel construction job.
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Per Curiam.
Plaintiff sued defendant General Motors Corporation and others for wrongful death of her decedent. All defendants, General Motors excepted, were dismissed with prejudice. Trial against General Motors ended with rendition of an instructed negative verdict and entry of a negative judgment. Division 2 affirmed (28 Mich App 7). Other than as amplified in the ensuing opinion, counsel for General Motors have supplied a generally satisfactory statement of facts:
"Michael McDonough, a journeyman iron worker employed by Paragon Bridge & Steel Company, was killed on October 3, 1963 in a construction accident at the Chevrolet assembly plant in Flint. His employer had contracted to erect the structural steel framework for an additional floor which was to be built above the then-existing plant. Sometime before the day of the accident, Paragon had installed several steel trusses which were to become part of the structure. At the time of the accident, Mr. McDonough was standing on one of these trusses. The Paragon crew of which he was a member had just completed the erection and rigging of a stiff-legged derrick, owned by Paragon, which was to be used to lift steel beams onto the roof of the plant. It was then late in the afternoon and it appeared that the derrick would not be used until the following morning. Following the customary practice in the industry, the crew proceeded to tie the boom of the derrick to a permanent truss in order to secure it for the night. While Mr. McDonough was bending under the boom attempting to secure it to the truss the boom fell, due either to careless operation of the derrick or faulty installation of the boom cable. It struck him and caüsed serious injuries which resulted in his death.”
Division 2 did not meet squarely plaintiff’s ap[437]*437peal to the exception which, by our decisions, has been engrafted into the general rule of nonliability of an owner-contractee, when the work contracted for by him is "inherently dangerous”.1 For an up to date statement of the exception, see Vannoy v City of Warren, 15 Mich App 158, 163-164 (1968):
"In Michigan the inherently or intrinsically dangerous activity doctrine is founded upon a theory which is closely akin to, but not exactly the same as, strict liability. The principle is applied 'where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.’ Inglis v Millersburg Driving Association (1912), 169 Mich 311, 321, 322.”
The Inglis decision seems to mark the first occasion when this Court applied the exception to facts tending to show that the work contracted for was inherently dangerous or perilous. In that case the Court approved expressly an extended passage taken from Covington, etc, Bridge Co v Steinbrock & Patrick, 61 Ohio St 215; 55 NE 618; 76 Am St Rep 375 (1899), and then went on to conclude (Inglis at 321-322):
"The principle involved cannot be better stated than it is in the sentence last quoted, supra. It is not applied to those cases where the injuries occur which are collateral to the employment, like the dropping of material by the servant of a contractor upon a person [438]*438passing by, but where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.”
Subsequent cases following Inglis and applying its rule are Huntley v Motor Wheel Corp, 31 Mich App 385, 393 (1971); Vannoy v City of Warren, 15 Mich App 158, 163-164 (1968); Utley v Taylor & Gaskin, Inc, 305 Mich 561, 572 (1943); Grinnell v Carbide Chemicals Corp, 282 Mich 509, 527 (1937); Watkins v Gabriel Steel Co, 260 Mich 692, 695 (1932), and Wight v H G. Christman Co, 244 Mich 208, 215 (1928). Probably the best statement of the mentioned exception to the general rule, succinct and specific as always when written by Mr. Justice Cooley, was quoted in Inglis (from 2 Cooley on Torts, 3d ed, p 1091):
"If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, * * * for I cause acts to be done which naturally expose others to injury.” (Inglis at p 319.)
The foregoing Michigan rule is echoed now by 2 Restatement of Torts 2d, particularly sections 416 and 427 (pp 395 and 415 respectively):
"416. One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
[439]*439"427. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”
The first question is whether plaintiff made out, as against defendant General Motors’ motion below, a case which tended to show that this contract of construction involved "danger to others unless great care is used” and that defendant General Motors failed to see that such "great care” attended execution of the contract.2 We think she did, and that the issue of actionable negligence as charged in the first count of her complaint was for the jury.
True, plaintiff bore a burden of legal persuasion that was, by the very nature of the stated rule and its exception, much heavier than obtains in the typical case where ordinary negligence is charged. There must be proof or inference from proof, not only of contracted work that is inherently dangerous, but also proof or inference from proof that "great care” was not used. We hold that such proof was supplied here.
Generally, and as already known by comparing the ever steepening rates of workmen’s compensation insurance, judicial notice may be taken that the assigned task of overhead riggers and assemblers of heavy steel beams and shapes is usually fraught with out-of-ordinary danger to such employees as well as others. Taking such notice, it is [440]*440prima facie apparent (but no more than that) that the job called for by this contract had to be performed with "great care” lest employees — not only of Paragon but of Chevrolet workmen below — be or become endangered by such performance.
Promptly taken photographs of the scene of this fatal accident were received in evidence. They provide striking proof of the inherently dangerous character of this contracted steel construction job. The crew was not framing a new building. It was framing a new floor and new roof over an existing floor and roof of a great manufacturing plant, with work proceeding below as before. The risk on favorable view was that much greater, for it extended to more workmen than those employed by the independent contractor. Had the boom of Paragon’s derrick, which the crew had just lengthened from 50 feet to 60 feet, not fallen partly across the closest of the trussed girders which the crew had fastened into place, it is not unlikely that the boom or some heavy part thereof would have crashed through or partly through the original roof of the plant, beneath which Chevrolet workmen presumably were at work or, considering the time of day, were coming and going between shifts. When the wrong sized cable,3 which through a succession of sheaves connected the drum of the derrick with the end of the boom, snapped and dropped the boom, the outer end of the latter caught on and was held by the girder; a fact we regard as fortunate for all nearby, plaintiffs decedent excepted.
[441]*441We do not say that the mentioned exception applies here as a matter of law or, for that matter, that it applies as a matter of law to other like cases. We say only that the evidence adduced warranted submission of the question of liability as charged, under the rule of Inglis and subsequent cases.
General Motors however claims immunity from liability under two provisions of the construction contract. They are:
"11. Contractor’s Responsibility: The Contractor shall be responsible for his work and every part thereof and for all materials, tools, appliances and property of every description used in connection therewith. The Contractor shall assume all risks of damage or injury to property or persons used or employed on or in connection with the work, and of all damage or injury to any persons or property wherever located, resulting from any action or operation under the Contract or in connection with the work, and shall protect, defend and save harmless the Owner from and against all claims on account of any such damage or injury.”
"30. Protection of Premises and Persons: The Contractor shall take all necessary precautions, provide barricades, guards, signs, notices, and such protection as may be required by laws and regulations for the protection of the Owner’s and other Contractors’ property, as well as adjacent property, on both new and existing work. By such provisions, the Contractor shall also protect all persons who may be on the premises or in adjacent areas affected by the Contractors’ operations.”
The exception we have considered precludes matter-of-law employment of these allegedly ex-emptive contractual provisions. As said regularly in the cited authorities, the owner "cannot escape this duty by turning the whole performance over to a contractor”; nor can he delegate that duty "so [442]*442as to avoid liability for its neglect”. The decedent was not a party to the contract and neither he nor his personal representative became bound thereby. Hence, the most that may be said for such provisions is that they may or may not, as between the contracting parties, have provided some right of indemnity or contribution should General Motors be held to respond in damages.
A separate question is raised and briefed. Since the case is to go back for retrial, we should and do consider it. Plaintiff states:
"Does an employer of a contractor doing major building construction who retains the right to control the safety performance, methods and program, enjoy immunity from suit for the negligent exercise of that control?”
General Motors counterstates:
"Does a property owner, who contracts to have construction work performed on his property and who does not retain control over the methods and procedures of a subcontractor, owe a duty of due care to protect an employee of the subcontractor from injury caused by the careless installation, use or the improper condition of the subcontractor’s own equipment?”
The questions thus stated and counterstated are of course argumentative. We think the issue may be couched best by inquiring whether, by what is contractually designated as the "Architect-Engineer’s Supervision”, General Motors provided for such measure of control over the conduct of the work, by its architect-engineer, as might or did create the same jury question as the Court found in Lake Superior Iron Co v Erickson, 39 Mich 492 (1878); a decision we shall presently review.
Exhibit 53a sets forth General Motors’ "Structural Steel” specifications. These specifications [443]*443were drafted for General Motors by its architectural firm, Albert Kahn Associated Architects and Engineers, Inc. The architect-engineer was General Motors’ overall administrator of the construction job as contracted. His legal position was, the contract documents considered, poised delicately— and ambiguously — between that of a general superintendent of major construction, and that of a mere consultant having no right to interfere or duty other than of advice. Consider his "status” (Exhibit 53a):
"Architect-Engineer Status: The Contractor agrees the Architect-Engineer and his representative shall have access to the work at all times and that the Architect-Engineer shall have the right to act in any and all of the various capacities assigned to him under the Contract.
"The administration, inspection, assistance and other actions by the Architect-Engineer or the Architect-Engineer’s Superintendent, as hereinbefore provided, shall not be construed as undertaking supervisory control of the construction work or of means and methods employed by' the Contractor, and shall not relieve the Owner or the Contractor from any of their responsibilities or obligations under the Contract; nor shall the Owner or the Contractor request or require the Architect-Engineer or the Architect-Engineer’s Superintendent to undertake such supervisory control or to administrate, supervise, inspect, assist or to act in any manner so as to relieve the Owner or the Contractor from such responsibilities or obligations.”
Between the two extremes thus forensically submitted lies the correct answer, review here being that of grant of motion for direction of a negative verdict. General Motors did not as a matter of law, retain "control”. Nor can it be said, as a matter of law, that General Motors retained such "control”. We have here a mixed question of fact and law, [444]*444determinable as usual in these cases by due interpretation and application of factual testimony, expert testimony and — particularly here — contract documents which on account of the very length thereof are likely to be susceptible of variant conclusions.
Having pored over 470 pages of contract documents forming a part of the original record,4 and having done so in conjunction with a mass of testimony adduced by plaintiff having to do with what in the record is known as General Motors’ "Safety Program”, one certain conclusion comes to the surface. It is that General Motors, drafter of all these contract documents, did upon view favorable to plaintiff reserve a measure of firm control over the job to be done for it by Paragon, and that it then (again on favorable view) attempted to water the legal stock of that conclusion by the quoted "Architect-Engineer Status” provision.
An owner contracting to have construction work done on his property cannot reserve to himself "[t]he administration, inspection, assistance and other actions” which do or may authorize some measure of influence or dominion over the way the work is to be done, and yet maintain as a matter of law that such reservation "shall not be construed” as undertaking supervisory control of the work "or the means and methods employed by the Contractor”. When a statutory action (MCLA 413.15; MSA 17.189) is brought by one not a party to such an Owner-Contractor "Agreement”, and it is shown either in fact or law that the relationship of employer and employee did not exist between the owner and the plaintiff or personal representative bringing suit, the applied construction of that [445]*445agreement is for the court to determine according to its processes; not the drafter of the contract.
For a decision that is closely analogous, both in law and fact, review Lake Superior Iron Co v Erickson, supra. There as here "[t]here was no employment relation” between the owner and the plaintiffs decedent. Justice Campbell proceeded (pp 497-498):
"It is proper first to consider the respective positions of the parties. Day and McEncroe [officers of the mining company] stood in the place of the mining company in making these contracts. There was no employment relation between them and Erickson, who was laboring under the contractors. So far as this changed the relative liabilities of the parties it must operate in this case. But while there are cases in which there is no duty or legal privity between principals and the servants of those who contract with them, this lack of privity is not universal and absolute. If, for example, a railway company were to contract with a firm of car-builders to build cars according to given plans in places under the entire control of the builders, there could be no possible corporate responsibility for injuries received by workmen in their callings. But on the other hand it might be quite possible for men to be employed in piecework in the shops of such companies where they retained more or less control, when for the failure of a corporate duty the workmen or strangers injured by that failure might have a cause of action for the wrong directly against the corporation, although it had not employed them.” (Citing Michigan cases.)
TO CONCLUDE:
1. Since the issue may arise on retrial, note is made of plaintiffs alternative contention that the record supports her allegation that General Motors, contracting thus with Paragon, knew or should have known that it had engaged "an incompetent contractor”. We find in the record no evidence or permissible inference from evidence tend[446]*446ing to justify submission to the jury of that alternative theory of recovery.
2. To avoid possible interpretation that this opinion affects that type of case mentioned in Inglis, "where the injuries occur which are collateral to the employment, like the dropping of material by the servant of a contractor upon a person passing by”, the profession is advised that the question of application of the exception to such a case, is expressly reserved.
Reversed and remánded for new trial. Costs of all three courts to plaintiff.
Black and Swainson, JJ., concurred.
SUPPLEMENT, by Justice Black (October 31, 1972):
This appeal was duly assigned to me in accordance with the practice of the Court. It was argued March 9, 1972. April 3 I submitted to the Justices a proposed opinion headed "Per Curiam” which, to the paragraph commencing "[a] separate question is raised and briefed” (ante 442), remains intact.
That opinion as proposed was amended by the writer August 9, so as to include treatment of the second question above. My August 9 memo to the Justices advised and concluded:
"The reason for treatment of the second question was my discovery of the uncited case of Lake Superior Iron Co v Erickson, 39 Mich 492 [1878]. I called Justice Brennan’s attention to this case prior to the time he prepared and turned in his opinion, and he has dealt with it according to his views. In addition to this information the Chief Justice says he expects to propose for consideration at our next conference some additional material he deems pertinent both to the Me[447]*447Donough Case and the yet unsubmitted Funk v General Motors Case.
"The foregoing, I believe, will get the case back on schedule so that it may move along.”
Now that the day of around-the-table judgment has arrived, it appears that the submitted Per Curiam opinion will make no precedent; hence this explanation to the profession.