Mitchell v. Southern Ry. Co.

• Decision Date: 06 May 1903
• Citation: 124 Ky. 146,74 S.W. 216
• Parties: MITCHELL v. SOUTHERN RY. CO.
• Court: Kentucky Court of Appeals

74 S.W. 216

124 Ky. 146

MITCHELL v. SOUTHERN RY. CO.

Court of Appeals of Kentucky.

May 6, 1903

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"To be officially reported."

Action by Thomas Mitchell against the Southern Railway Company to recover a balance due on a contract. Judgment for defendant and plaintiff appeals. Reversed.

Helm Bruce & Helm, for appellant.

Humphrey Burnett & Humphrey, for appellee.

PAYNTER J.

On the 9th day of April, 1901, the appellant, Mitchell, and the defendant, Southern Railway Company, entered into a contract by which Mitchell was to do certain work in the construction of a tunnel on the line of the appellee's railway in Indiana, according to the specifications made a part of the contract. The specifications contained the following provision:

"The contractor takes an risks in regard to accidents and casualties of all kinds which may occur during the progress of the work and to be held responsible for all damages to work as well as to the machinery, rolling stock, persons and property, which could have been avoided by the exercise of proper care and vigilance on his part."

Among the provisions of the contract was the following:

"The contractor hereby agrees to give bond, same secured by some reliable surety company, accepted by the Railway Company, in the sum of fifteen thousand dollars ($15,000), for the faithful performance of the within contract, and for the purpose of indemnifying the Railway Company for the work contemplated under this contract, and for all cost accruing to said Railway Company in defending any and all liens, of whatsoever nature, enforced for labor and material under this contract.

"Said contractor further agrees to indemnify and save harmless said Railway Company from all casualties or accidents resulting to employés engaged in the work contemplated under this contract, or to any third person who may be in any manner injured or damaged by the said contractor, his servants or agents, in the performance of this contract."

The appellant entered upon and completed the work under the contract, which has been accepted, and the contract price has been paid, except $355.95, which appellee withheld from the appellant on account of the following facts, namely: During the progress of the work on the tunnel, Mills Buxton received an injury, which was due entirely to the negligence of the appellee in the manner of its operation of a railway train through the tunnel whilst Buxton was working as an employé of plaintiff in the execution of the work required by the contract. Neither the plaintiff nor any of his employés in the least degree contributed to the injury. The train which inflicted it was not used by the appellant or for him, but was one which was operated entirely by the appellee, and wholly within its control. Buxton instituted a suit against the appellee to recover damages for the injury he had received. The suit was compromised for $355.95, and it is conceded that the compromise and settlement was a prudent one for the appellee to make.

The question here for our consideration is, did the appellee have the right to withhold the amount which it paid Buxton out of the contract price of the work? The answer to this question depends upon the terms of the contract into which the parties entered. It is the contention of the appellee that the appellant indemnified it against losses occasioned by casualties and accidents resulting in the injury of the appellant's employés engaged in the performance of the work contemplated under the contract, notwithstanding that the injury might be inflicted solely by its own negligence. For the appellant it is insisted that it was not the intention that he should indemnify appellee against its own negligence, but that he was indemnifying against losses which might result to it by reason of his or his employés' conduct in the prosecution of the work. In construing a contract, it should be the purpose of a court to ascertain, if possible, the intention of the parties to...