175 A.D. 170 | N.Y. App. Div. | 1916
The plaintiff, a railroad company, sued the defendant, a contractor, and its surety, upon an indemnity agreement. The contractor agreed to make and build an elevated railroad structure. It was to erect the superstructure while the plaintiff operated its railroad on adjacent surface tracks. Sea-brook, an employee of a sub-contractor, was injured while working on the surface near the tracks. He sued the railroad company, alleging that its negligence in operating a train was the sole cause of his injury. He recovered judgment for $21,148.22, which was affirmed on appeal. The railroad company paid $23,000. The amount of that payment, with interest, is claimed in this suit. In this action the learned trial court directed a verdict for the plaintiff. All parties moved. A motion to set aside the verdict was entertained and, after deliberation, denied. If it be necessary to plaintiff’s recovery here to prove negligence other than that of the railroad company, there is no evidence of that negligence, the
“ 24. In the execution of the work the Contractor assumes all risks and liability on account of injury or damage to persons and or property due to his carrying out of the work; and also all risks and liability of injury to abutting property, plant or employees from flood, fire, explosion, landslides, the breaking of water or gas mains or sewers, or by the breaking of live electric wires, or from any other cause; and all liability due to trespass or depredation on the part of his employees.
“ 25. Contractor shall protect the Company against any suits for damage which may arise from any injury sustained by any employee of the Contractor in the carrying on of this work; or from any damage suit arising from loss or damage to the person or property of any individuals due to the carrying on of the work or in consequence of the execution of this work. Contractor further agrees that all or sufficient money due to him under this contract shall and may be retained by the Company until any such suits for damage or claims shall have been settled, and evidence of such settlement furnished to the satisfaction of the General Solicitor of the Company. * * *
“28. Such methods and plant shall be provided by Contractor as he considers suitable to his own requirements, for expeditiously and efficiently carrying out the work under contract; but if in the execution, the Engineer may deem any such methods or plant to be insufficient or improper, or such as to endanger the safety of persons or property, or of the work itself, he may order any such changed or discontinued, and such orders must be immediately and implicitly obeyed by Contractor. * * *
“ 61. At all openings Contractor shall maintain efficient and satisfactory fences or other protection to employees and the public and by night shall maintain proper lighting and watch. * * *
*173 “D 9. At all times during the erection of either steel superstructure or masonry abutments or column foundation, adjacent to operating railroad tracks, the Contractor shall maintain an efficient flagman to watch and flag approaching trains; one such flagman to be maintained to the eastward and one to the westward of the point at which work is in actual progress. In case the services of such flagmen are necessitated by work being executed by more than one Contractor at the same location and time, and involving dispute between Contractors as to the distribution of such expense, then the Engineer will himself employ such labor on behalf of the Contractors and apportion to each Contractor his proper distribution of the expense; deducting the amount from any money which may be due to him for work executed. * * *
“ 319. The Contractor shall and will indemnify and save harmless the Company of and from all actions, suits, claims and demands which may be made against said Company for or on account of any injuries or damages received or sustained by any person or persons, by or from the Contractor, his agents or servants, in the prosecution of this work, or by or in consequence of any negligence in prosecuting or guarding the same, or any improper tools or materials used in its construction, or by reason of any damage or injury to passengers or property of or upon the Long Island Railroad or in the public streets, whereby the Company shall sustain loss or be held liable in damages and shall in like manner indemnify the Company from any and all loss and damage sustained by said Company from any of the causes above recited.”
The question for our decision is: Did the bridge company, by its contract with the railroad company, assume absolute responsibility for all accidents, even those caused solely by the negligence of the railroad company itself %
The quoted provisions provide for absolute indemnity for damages for injuries sustained by any employee of the contractor due to the carrying on of the work or in consequence of the execution of the work. By the definition expressly adopted by the parties, subcontractor is included in the word contractor. The agency by which the injury is inflicted is immaterial if the injury is inflicted in the carrying on of the
We need only read the provisions for indemnity in the contract examined in Manhattan Railway Co. v. Cornell (54 Hun, 292; affd., 130 N. Y. 637), cited by appellants, to find them not to be as comprehensive in scope and as plain and precise in fixing the contractor’s liability. It may also be noted it does not appear in that casó that there was an affirmative duty to guard assumed by the contractor and that the parties had that circumstance in mind when preparing their contract. The provision for indemnity against the damage caused by the negligence of the plaintiff’s employee is not illegal. (Westing-house, Church, Kerr & Co. v. Long Island R. R. Co., 160 App. Div. 200; affd., 216 N. Y. 697.)
We think the indemnitors were properly and seasonably vouched into the Seabrook case, and that, under the terms of the contract, it was optional with the plaintiff to pay the contractor the amount due on the contract before the liability herein was determined. (Mayor, etc., v. Brady, 151 N. Y. 611.)
The judgment and order should be affirmed, with costs.
Present — Jenks, P. J., Carr, Stapleton, Rich and Putnam, JJ.
Judgment and order unanimously affirmed, with costs.