Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.
By this appeal the third-party defendant, The Frank A. McBride Company (McBride), seeks to reverse a judgment entered against it in the Superior Court, Law Division, in favor of Curtiss Wright Corp. (Curtiss), plaintiff in a third-party action based on an indemnification agreement hereinafter described. Polit, a McBride employee, was awarded damages in the sum of $18,944 for personal injuries, suffered by him on July 12, 1957, as the result of the alleged negligence of Curtiss on whose property at Wood Ridge Polit was working when injured. He was severely burned when a pneumatic jackhammer, which he was operating, came into contact with 250-watt, 2300-volt underground electric wiring housed in concrete on premises of Curtiss. His judgment against Curtis was based on a claim that it had failed to provide him with a reasonably safe place to work and had failed to warn him of the existence of a dangerous and unsafe condition on its premises, specifically the presence of the underground electric wires. The propriety of the aforesaid judgment against Curtiss in favor of Polit is not challenged on this appeal.
The judgment in the third-party action in favor of Curtiss against McBride, in the sum of $20,613.91, was entered as the result of the following procedure: Initially, the trial
court determined, as "a matter of law," that McBride was obliged to reimburse Curtiss under the terms of the aforesaid agreement, which agreement, the court held, "encompassed the incident" on which the Polit action was based. Following the rendition of the aforesaid verdict of $18,944 in favor of Polit against Curtiss, the court, on due notice, entered the above mentioned judgment of $20,613.91 in favor of Curtiss against McBride in the third-party action, reflecting therein the amount of the aforesaid Polit verdict together with attorneys fees of $1,050 and expenses of $619, determined by the court reasonably to have been incurred by Curtiss in defense of the Polit action. McBride does not question the finding that the allowances were "reasonable and necessary" or that the original verdict in favor of Polit was reasonable in amount. It contends that the trial court erred in holding that, as a matter of law, it was liable to Curtiss under the indemnification clause, and argues that the court erred in refusing to submit to the jury for its decision certain factual issues, hereinafter set forth, claimed by McBride necessarily to be resolved before it could be found liable to Curtiss.
The genesis of the present controversy was a contract which McBride had entered into with Curtiss to install a high pressure air charging and storage system on the Curtiss property, under which contract McBride agreed to furnish Curtiss the "labor, material and incidentals required for the installation of 8" cast iron drain line, including all necessary excavation, backfill, cutting and patching of concrete and black top pavement * * *" at a price which was expressed as "based on hand excavation due to the many existing underground lines in this area, which would make machine excavation extremely hazardous."
The contract contained the following indemnification clause:
"In connection with the work we [McBride] have contracted to do for your company, we specifically assume all risks of loss, damage, or injury from any cause to property or persons used or employed
on or in connection with the work and all risks of loss, damage or injury (including death) to any property or persons wherever located resulting from any action or operation under the contract or in connection with the work, and we further undertake and promise to secure, protect, defend, indemnify and hold harmless your Company from and against all such loss, damage or injury and from all costs and expenses connected therewith."
The circumstances surrounding the happening of the accident are not disputed. The trench-digging, in which Polit was engaged when injured, was in preparation for the installation of the drain line. Much of the work had been done by the use of pick and shovel, but a jackhammer had been used to cut through the surface of the roadway transversed by part of the trench. At the time of the accident plaintiff was using the hammer, not in cutting the roadway surface, but in an attempt to cut into a block of concrete which had been uncovered during the digging. The hammer had penetrated the block to a depth of about four inches when it struck the aforesaid wiring which, unknown to Polit, was encased in the concrete.
At trial extensive testimony was taken, much of it in sharp conflict, involving a variety of issues which, appellant asserts, had to be resolved by the jury to determine the extent of McBride's liability under the indemnity agreement. It contends that among such controversial issues were whether plaintiff's injuries proximately were caused by the sole negligence of Curtiss and, if so, whether such negligence was active or passive; and whether there was an uncontemplated deviation from the work covered by the contract and, if so, whether it was the intention of the parties that Curtiss should be indemnified by McBride if Polit's injuries resulted therefrom. We disagree with such contention. The principles enunciated in Cozzi v. Owens Corning Fiber Glass Corp. , 63 N.J. Super. 117 (App. ...