Opinion by
The plaintiff sued in assumpsit to recover an unpaid balance due upon a contract under which they erected a steel smokestack for the defendant. They sublet the work to one William M. Connery, but as the contract between the plaintiffs and the defendant provided that “ no subcontractor shall under any circumstances relieve the contractor” — meaning Morton Reed & Company — “of his liabilities or obligations under this contract,” the case is in the same situation, so far at least as the duty of Morton, Reed & Company to indemnify the defendant is concerned, as if they had performed the work. The defendant pleaded set-off, payment with leave, etc. On the trial of the case the plaintiffs offered in evidence a stipulation of counsel in which it was agreed, inter alia, as follows:
“ All the work required by the said contract to be performed by Morton, Reed & Company was by them performed and accepted by the defendant, but the defendant contends that Morton Reed & Company have not complied with the clauses of the contract relating to indemnifying the defendant.” The clauses of the contract here referred to will be discussed after we have disposed of the question, not distinctly suggested in the above stipulation, namely, as to the defendant’s right to contribution independently of the indemnity clause of the contract.
The defendant offered in evidence in support of its plea of set-off, a transcript of the record of the case, Verna R. Fetters v. Union Traction Company, in the United States Circuit Court, wherein she recovered a judgment in damages for the loss of the life of her husband, which judgment was paid by the defendant. The pleadings in that case are not printed, but from the evidence and the charge of the court, which are printed, there is no difficulty in ascertaining the ground of her recovery.
Whenever a plaintiff introduces and makes the record of an action, and a recovery therein against himself, the foundation of his suit or basis of his claim in an action brought by him afterwards against a third person, he is not at liberty to deny the principle upon which the action was decided: Weckerly v. Lutheran Congregation, 3 Rawle, 172. In order to ascertain what was passed upon by the jury, it is proper to examine the charge of the court filed of record in the case: Follansbee v. Walker, 74 Pa. 306. It will, therefore, be pertinent to quote from the charge to the jury in the Fetters case the instructions of the court as to the controlling questions in that case. At the outset of his charge the learned judge said, “We are not here to determine any other question than this, whether the' defendant is responsible; and we have nothing to do, I repeat, with the contingent liability of Morton, Reed and Company. So you may lay that aside in advance.”
Speaking of the original condition of the platform, he said: “ I see no evidence here that would justify the jury in finding that this protective platform was defectively constructed, either in the manner of its construction or in the materials selected; and therefore, even if the traction company were responsible for the erection of the platform, we should be obliged to say to you, and we do say, there is no evidence that it was insuífi
Speaking of the responsibility for the removal of the plank, he said: “ But I cannot agree with the defendant’s counsel in holding that the removal of that board was the work of the contractor. It was done, it is true, by persons who were in the employ of the contractor; but, as I understand, they were acting at that time under the direction of the engineer — or the assistant engineer, which is the same thing — in doing the work which the defendant itself was performing. The defendant itself was doing this work and it was interfering — properly enough, but still interfering — with the condition of the platform. Therefore, in my opinion, the men doing that work were doing it for the defendant.”
After careful instructions as to the questions of negligence to be determined by the jury, he concluded as follows: “ Now these are the questions — or perhaps it is more accurate to say, that is the question — in the case for you. It is the single question, whether under all the circumstances in this case the defendant used due and proper care to close this aperture, to restore this platform to the condition in which it found it. If it was neglectful; if, considering the danger to which the men were constantly exposed, it delayed an unreasonable time, then it may be responsible for what has happened in this case.”
In determining what was adjudicated in that case, we must presume that the jury obeyed the instructions of the court. Thus viewing the record we are warranted in saying that these points were adjudicated: First, the injury did not occur in consequence of any defect in the original construction of the protective platform or of any defect in, or inadequacy of, the materials used. Second, the traction company was responsible for the removal of the plank and for the failure to restore the platform to its original condition, and was negligent in not doing so. Third, if the traction company had not been negligent in this particular, the accident would not have happened; in other words, if a hole had not been left or the platform weakened by the removal of the plank, the beam or stringer would not have passed through and struck Fetters. But, fourth, the record in that case does not establish the fact that the injury was sustained in consequence of any joint, concurrent or independ
But in addition to the record in the Fetters case the defendant offered to prove by the testimony of witnesses to be called in the present case, that the beam or stringer was negligently placed by Connery’s servant in such a position that when they stepped upon the plank upon which it was supported, it was dislodged and fell, breaking or passing through the protective platform below. The offer is fully set forth in the second assignment of error. As already intimated, the judgment in the Fetters case does not establish the fact that the injury was attributable exclusively to the negligence of the defendant. There may be recovery against either one of two joint tort feasors. It, therefore, would not contradict that record to prove that the injury would not have resulted if the negligence of Connery’s men had not concurred with that of the defendant.
Assuming, then, that, in view of the defective condition of the protective platform, the former were negligent in the particular above referred to, the first question presented for our decision is, whether, independently of the indemnity clause of the contract, the defendant is entitled to contribution from the plaintiffs. The defendant must necessarily take this position : True, we were negligent, but our negligence would have been harmless, had it not been for the fact that Connery’s employees negligently placed the beam or stringer in an unsafe position ; therefore, although we were properly held liable in the Fetters case, the plaintiffs, who are responsible for the negligence of Connery’s employees, ought to contribute proportionably with
We come then to the question whether the indemnity clause of the contract applies to such a case as we have last stated. It reads as follows: “ The contractor” — meaning Morton, Reed & Company — “ further agrees that he will indemnify and save harmless the Union Traction Company from all suits or actions of every name and description brought against the said Union Traction Company for or on account of any injuries or damages received or sustained by any person or persons by or from the said contractor, his assistants or agents, in the construction of said work, or by or in consequence of any negligence in guarding the same or any improper materials used in its constructions or by or on account of any act or omission of the said contractor or his agents.” Then follows a clause authorizing the defendant to retain so much of the money due the plaintiffs as should be considered necessary by the defendant’s engineer, “ until all such suits or claims for damages as aforesaid shall have been settled and evidence to that effect furnished to the satisfaction of the engineer.”
We know of no Pennsylvania case in which the precise question raised here has been discussed. But this statement of the rule of law seems to us to be founded upon sound principle: Where the indemnity is against the consequences of negligence or carelessness on the part of the indemnitor, the indemnitee must, in order to recover, show that the damage for which he seeks to be indemnified was caused by some negligent act of
Judgment affirmed.