NORTH AMERICAN RY. CONST. CO. v. CINCINNATI TRACTION CO., 172 F. 214

GROSSCUP, Circuit Judge (after stating the facts as above), delivered the opinion. ' Contracts of indemnity such as the one here sued upon, are usually intended to provide against loss or liability of one party, through the operations of the other, or caused by physical conditions that are under the control of the other — over which the party indemnified has no control, and the party indemnifying has control.

Indeed, it would take-clear language to show that a contract of indemnity was intended to cover conditions or operations under the control of the party indemnified, and not under the control of the indemnifying party, such, for instance, as accidents, the proximate cause of which is the negligence of the party indemnified.

The provision of the contract under consideration provides that the rehabilitation contractor agrees to indemnify the traction company against all suits brought against it on account of claims for damages done or caused in the course of construction of the work, “or in consequence thereof,” including injury to persons, lands or buildings. The injury to Mrs. Whitteker was not caused in course of construction of the work.

It must therefore fall, if it falls at all, within the clause “or in consequence thereof,” that is to say the injury must be in the line of direct cause and effect of the work done, or the conditions created, by the indemnifying party. The-facts before us do not-disclose that such was the case. Proximate cause is the wrongful act that caused the injury, usually the fii s't wrongful' act that starts the party injured on his way to the injury. That act, in this case, was the negligence of the traction company, in allowing Mrs. Whitteker to get off on the wrong side of the car',, the side next to the excavation.

True, if the excavation had not been there, the negligence of the traction company might not have resulted in injury. But the excavation was not wrongfully there, and was not, as against the traction company, wrongfully left unmarked and unlighted. The responsibility of the traction company for the injury in this case — the place where Mrs. Whitteker fell into the excavation being away from any street crossing or other line of travel — is not different from what it would have been had the traction company picked up Mrs. Whitteker on the sidewalk adjacent and carried her to the excavation where she fell in.

In no view of this case can we see the proximate cause of the injury as other than the wrongful act of the traction company in depositing Mrs. Whitteker where she was deposited. Upon these facts, and with this view of the true intent and meaning of the contract of indemnity between the parties, there is in our judgment no cause made for liability, and the Circuit Court was in error in instructing the jury to bring in a verdict for the defendant in error. The judgment of the Circuit Court is reversed with instructions to grant a new trial, and to proceed further in accordance with this opinion.