result of its own negligence. The reasons for our concluding that the parties did not so intend appear below.
(1) It is well settled that, while an agreement of indemnity is construed against one whose business it is to enter into such agreements, the rule is otherwise where as in the present case the indemnitors are not regularly engaged in such business. In the latter case the liability of the indemnitors are not regularly engaged in such business. In the latter case the liability of the indemnitors is to be strictly construed. City of Philadelphia v. Philadelphia Gas Works Co., 49 Pa.Dist.& Co.R. 314. Application of this rule of strict construction to the instant case means that liability can be imposed upon the defendants, the indemnitors, only if loss or damage due to the negligence of the plaintiff is specifically set forth in Article (17), the agreement of indemnity. It is not; thus no liability can be imposed.
(2) There is an additional reason why the liability of the indemnitors, the defendants in the present case, should be strictly construed with every intendment against the plaintiff who is seeking the protection of the indemnity agreement contained in Article (17). The negligent act of the plaintiff which in reality is the basis of the present action relates to the violation of a public duty imposed upon said plaintiff as one engaged in public works. This public duty is such that as against third persons injured as a result of the violation of said duty it is legally impossible to delegate it. It is true that the General Contractor's attempt to delegate is public duty in the present case was with respect to the defendants and not as against third persons. Notwithstanding, under the rule of strict construction the delegation will not be deemed legally accomplished unless done by clear, precise, and unequivocal language. Manufacturer's & Merchants Building & Loan Ass'n v. Willey, 321 Pa. 340, 183 A. 789. It is apparent from a reading of the language of Article (17) no such clear, precise and unequivocal delegation is present; it must therefore be concluded that the parties did not contemplate indemnification for the negligent act of the plaintiff.
(3) The parties did not treat Article (17) as an agreement by the sub-contractors to indemnify the general contractor for loss or damage due to its, the general contractor's, own negligence.
a. The evidence shows that after Jeremiah M. Downey had brought an action against Union Paving Company said Union Paving Company made payment to the defendants of the balance due on the contract in question, despite the fact that it, Union Paving Company, had the right under Article (17) in the event of any loss, expense, damage, injury or claim, etc., as described in said Article (17) to withhold from any payment due the defendants under the contract an amount sufficient to protect and indemnify it from any and all claims, etc. Indeed, the checks in evidence show other payments to the defendants after the commencement of the Jeremiah M. Downey suit.
b. Another circumstance showing that the plaintiff did not consider Article (17) as affording it protection against its own negligence is that it was insured for public liability. We assume it intended to rely on said public liability insurance- as in fact it did when Jeremiah M. Downey brought suit against it.
c. No other accident occurring on the job- and the record discloses there was at least one- was referred to the defendants as their liability under Article (17).
Conclusions of Law
1. The failure of the watchman supplied by plaintiff to properly maintain the lights, barricades and directional traffic signs constituted negligence and said negligence was the sole cause of the accident and resulting injuries to Jeremiah M. Downey.
2. The agreement of indemnity contained in Article (17) of the written contract between plaintiff and defendants did not include loss or damage due to the negligent act of the plaintiff.
3. The within complaint will be dismissed.
An order in conformity with the foregoing opinion and providing that defendants' costs be paid by plaintiff will be entered.
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