
    The Manhattan Railway Company, Pl'ff, v. John M. Cornell, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    Contract—Indemnity—Negligence.
    A provision in a contract for repairs to a railroad platform, by which the contractor assumes all liability for, and indemnifies the company against all loss, etc., for 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, has reference to injuries connected with the progress of the work, and does not cover damages for the death of a laborer caused by the negligence of the company or its employees.
    Case submitted upon an agreed statement of facts.
    
      Samuel H. Benton, for pl’ff; Tallmadge W. Foster, for deft.
   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 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, laborera 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 contractors’ firm, was struck by one of the plaintiff’s engines, and so injured that he died on the 6th of March, 1886. His widow, as administratrix, brought an action against the plaintiff to recover damages for the killing oí 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 this 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 reasonably 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 employees.

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 of this proceeding.

Vah Brunt, P. J., and Brady, J., concur.  