The facts germane to the resolution of this appeal are not in dispute. Defendant Southpointe Square Apartments engaged defendant Practical Home Builders, Inc., as the general contractor for the purpose of building a multi-unit apartment complex. Practical Home Builders, Inc., in turn еngaged one E. M. Nolan Contracting Company as a subcontractor to do the rough carpentry work. Plaintiff John Yoakum worked for Nolan as a journeyman rough carpenter.
On March 17, 1969 plaintiff was working on the roof of one of the buildings. While he was working near the edge of the roof he was struck in the back of the neck or head by a sheet of plywood which the wind had blown from a stack of plywood which had been placed on the roof. As a result of this event plaintiff dropped the portable electric saw he was using, causing said saw, which had an unguarded blade, to cut into his left leg to the extent thаt 80 to 100 stitches were needed. As a result of the blow to his head or neck and the injury to his leg, plaintiff now suffers from several permanent injuries.
Plaintiff commenced this action against defendants on the theory that since he was engaged in *386 an "inherently dangerous” activity, both defendant owner and defendant genеral contractor owed a non-delegable duty to plaintiff to provide him with a safe working environment. Defendants argued basically that plaintiff failеd to prove that the work was "inherently dangerous” and that the failure to provide necessary safety equipment rested solely with plaintiff’s employеr, the subcontractor.
After extensive discussion between the trial court and counsel with respect to the meaning and effect of
McDonough v General Motors Corp,
"Those are the four elements, and I will develop them more.
"First, that the work that he was engaged in was inherently dangerous for a carpenter;
"Second, that the defendants, Practical Homes and the South Pointe Square Apartments, were negligent;
"Third, that that negligence was a proximate cause;
"And, fourth, that he received injuries flowing from that.
"Now, it is the law in this State that one who employs an independent contractor to do work involving special danger to others, which the employer knows or has reason to know to be inherently [sic] ox normal or which he contemplates or has reason to contemplate when making this contract, is subject to liability for physical harm caused to such others by the contraсtor’s failure to make reasonable precautions against such danger.
"You will recall that I said the first thing the plaintiff must establish — has the burden of proof оf establishing —and I will define burden of proof for you shortly — is that this activity was inherently dangerous for a carpenter. Now, in defining and determining whether this *387 is inherently dangerоus is the job of you ladies and gentlemen of the jury under all the facts and circumstances.
"The danger to which the doctrine has reference to here is one that is incidental to and characteristic of the stipulated work itself.
"Now, you must first determine whether the work that the plaintiff was doing was inherently dangеrous to him as a carpenter. This is the first determination you make.
"If you determine the work was not inherently dangerous, that is the end of the case. You go no further in your deliberations and would return a verdict for no cause for action.
"But if you do determine that the work was inherently dangerous, then you go to the second thing, which is negligence, because as I said, if the defendants are negligent, then the plaintiff has the burden of proof of showing that the defendants werе negligent.
"Now, what do I mean when I say negligence? When I use negligence with respect to the defendants’ conduct, I mean the failure to do something whiсh a reasonably careful builder would do or the doing of something which a reasonably careful builder would not do under the circumstances which you find existеd in this case. It is for you to decide what a reasonably careful builder would do or would not do under the circumstances here.
"When I use the words 'ordinary care’, I mean the care which a reasonably careful or prudent builder would use under the circumstances which you find in this case.
“Now, one other рoint, the law says that the violation of any building code is evidence of negligence. The violation of the building code is evidence of negligencе.
"Now, what do I mean when I talk about negligence? Negligence is really the failure to use due care. Did the defendant use that degree of carе which a reasonably prudent person or a reasonably prudent builder would use under the same or similar circumstances for the protection оf the plaintiff? That is all we’re talking about. Negligence is not a complicated thing. It is the *388 failure to use due care under the circumstances then and there existing.”
The court thereafter proceeded to instruct the jury as to proximate causation and damages.
At the close of the charge to the jury the court asked defense counsel if he had any objections, to which counsel replied that he. did not think Mc-Donough was applicable. 1
On appeal defendants would hаve this Court undertake an examination of the meaning and mandate of the
McDonough
decision. We find this to be unnecessary in light of the' Court’s recent opinion in
Funk v General Motors Corporation,
There can be no question that the trial court *389 fashioned its instruction on its conception of the holding in McDonough. The question now is whether the charge can stand the test formulated in Funk. We think it can. While the charge was couched in the McDonough terms of an activity that is inherently dangerous, the trial court fortunately did not bottom liability upon some form of strict liability as McDonough would seem to mandate, but rather based liability upon the negligent failure of defendants to take reasonable precautions against the danger. In doing so the trial court, while not following what McDonough would seem to mandate, arrived at what Funk now mandates.
The fact that the instruction used the "inherently dangerous activity” terminology in no way prejudiced defendants, since clearly if the jury found that the activity was "inherently dangerous fоr a carpenter” and that defendants failed "to do something which a reasonably careful builder would do”, the end result would be to find that defendants had failed to implement reasonable safety measures. While such languages is probably not the best way to explain the Funk standard, since the ultimate questiоn presented to the jury required the jury to determine that which Funk requires, we find no reversible error, particularly in light of the fact that defendants’ contention wаs that they had no liability rather than that the instruction as given was not as clear as it might be.
In light of this disposition, we find it unnecessary to address ourselves to the questiоn raised by plaintiffs on cross-appeal.
Affirmed. Costs to the plaintiffs.
Notes
The jury thereafter returned a verdict of $474,000 in favor of plaintiff husband and $10,000 in favor of plaintiff wife.
It should be noted thаt in the instant case defendants have argued that their freedom from liability is co-extensive with one another. At no time, either here or below, has defendant property owner argued that the liability, if any, rested solely with the general contractor; on the contrary, both defendants argued that the solе responsibility rested with the subcontractor. In light of the failure of the property owner to plead the possible defense of delegation to the general contractor, we will treat the owner’s liability as being coextensive with that of the general contractor.