I concur in the result that the judgment should be affirmed but only because of the law of indemnification. In other words, from my reading of Stoeppelman v. Hays-Fendler Construction Co. et al., 437 S.W.2d 143 (Mo.App.1968), it appears that defendant Hays-Fendler created the excavation, and, consequently, it was guilty of active negligence. On the other hand, defendant Traroloc was only passively negligent; that is, Traroloc, as landowner, was guilty of negligence only because it failed to have discovered the dangerous condition created upon the land by Hays-Fendler and to have made it reasonably safe for persons rightfully upon the land.
I disagree with that part of the opinion which seeks to affirm the judgment under the provisions of the contract agreement. A plain reading of the contract was that Hays-Fendler only intended to protect the work, the adjacent property and the public and to be responsible for all damages due to the act or neglect of Hays-Fendler, not the acts or neglect of Traroloc.