I agree with the conclusion reached in this case. to have made any other disposition of the matter would have been to impose upon appellant the broad and strict responsibilities of an insurer of appellee against liability for injuries which might arise under any circumstances, whether those circumstances were in any degree under the control of appellant or not. On the contrary, appellant was bound only by a contract of indemnity, insofar as this case is concerned, 'for injury to * * * any person * * * arising out of or attributed, directly or indirectly to the operations of Contractor hereunde.'
In Quinones v. Township of Upper Moreland, et al.,187 F. Supp. 260 (160) at page 266, the United States District Court for the Eastern District of Pennsylvania presents a review of the so-called 'express negligence' rule. The court states:
*Page 450"In Pennsylvania the general rule is that a contract of indemnity will
not be held to protect the indemnitee against the consequences of his own negligence unless such intent is clearly shown in the contract. The reasoning most frequently offered to support this rule is that to hold otherwise woudl be to put the indemnitor at the mercy of the indemnitee's negligent conduct, a result which the court woudl not permit absent a clear showing that the parties so intended."
citing, among many other cases, Perry v. Payne, 217 Pa. 252,66 A. 553, 11 L.R.A., N.S., 1173, referred to in the opinion in the instant case.
Similar language is not unknown to Texas courts. In the case of San Antonio A. P. Ry. Co. et al. v. Adams,6 Tex. Civ. App. 102, 24 S.W. 839, plaintiff was an express messenger in the employ of the Pacific Express Company. By contract between the express company and the defendant railroad company, the latter was boudn to carry the plaintiff and goods in his charge in the baggage car of its passenger train, which was exclusively under the control of the defendant. Through the latter's negligence, the car in which the plaintiff was riding fell through a bridge, injuring plaintiff. A clause in the contract between the two companies read as follows:
"B. Said express company assumes all risk of loss or damage arising out of, or resulting from, its operations under this agreement, and shall hold harmless the said railway company against the same."
The court held:
"The express company assumed risks 'arising from its operations' under the agreement, — that is, as we construe it, its own losses, and losses for which it would be responsible. It was not liabile, in any sense, to plaintiff for his injuries caused by the negligence of the railway company in failing to keep its bridges and roadbed in repair, and his injuries could not be a loss to the express company. * * * The railway company could not contract to make a third party responsible to its employes, or to passengers, for its negligence and wrong, so as to bind the latter, even with their consent, nor will we be understood as holding that such a contract would be binding upon such third party; but we rest our opinion upon the contract itself, as not intended to create such a liability."
It occurs to this writer that in a case such as the instant case, which involves the interpretation of an owner-contractor agreement including indemnity provisions, the application of the 'express negligence' rule leads to a greatr degree of fairness as well as to more uniformity of decisions, and will, in all likelihood, reduce the volume of litigation.