Manhattan Ry. Co. v. Cornell , 61 N.Y. Sup. Ct. 292 ( 1889 )

Daniels, J.

The plaintiff entered into a contract with J. B. & J. M. 'Cornell for the extension of its station platform on its Sixth-Avenue line at Fifty-Eighth street, in the city of New York. The contract contains the -agreement that (2) the contractor is to assume all liability for, and to indemnify the company against, all loss, cost, or damage, for or by reason of any liens, ■claims, or demands for materials, or from laborers, mechanics, and others, and from any damages arising from injuries sustained by mechanics, laborers, or other persons, by reason of accidents or otherwise, and from damages sustained by depositing materials, to the injury of the city or any person, including costs and expenses of defense; providing that they be duly notified of the bringing of such suits in such cases, and be permitted to ■defend the same by their own counsel, if they should so elect. While the work was in progress John Sullivan, who was a laborer in the employment ■of the contractor’s firm, was struck by one of the plaintiff’s engines, and ■so injured that he died on the sixth of March, 1886. His widow, as administratrix, brought an action against the plaintiff to recover damages for "the killing of her husband, alleging that to have been caused by the negligence of the plaintiff. This action was not brought to trial, but it was settled for the sum of $1,000, and, by the stipulation providing for the settlement, the contractors agreed that the settlement should be without prejudice to the company's right to claim indemnity for the amount paid, against .them. There is, however, no reasonable ground for sustaining the position taken by the plaintiff that the defendant, who is the surviving member of the ■contractors’ firm, should reimburse to it the moneys paid for bringing about tliis adjustment; for the accident by which Sullivan lost his life was the negligence of the plaintiff itself, and not of any person in the employment of the contractors. For while the language of this part of the contract is very general, it cannot reásonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment. What the parties designed and intended by this part of the agreement was to indemnify the plaintiff against liability for any damages or injuries that might be sustained by persons in the employment of the contractors in the progress and execution of their work. As to those injuries, they took the responsibility of loss upon themselves, and .that they very well could be expected to do, inasmuch as they would proceed, if they occurred, from the acts of the contractors themselves, or persons in their •employment. They had nothing whatever to do with the operation of the plaintiff’s railway. The persons engaged in that pursuit were employed by the plaintiff itself. There was no relation whatever existing between them and the contractors, and it is not reasonable to suppose that in the use of this language either the plaintiff or the contractors intended or understood the ■latter to be obligated to indemnify the plaintiff against the carelessness or misconduct of its own servants or employes. The plaintiff has no legal claim against the defendant for indemnity arising out of these facts, and judgment to that effect should be directed in favor of the defendant, together with the costs. All concur.