The opinion of the court was delivered by: WADDY
In this action the United States seeks to recover by way of indemnity the amount paid by it in settlement of an action for damages for personal injuries sustained on the job by an employee of the defendants, a government contractor. The cause came on to be heard by the Court without a jury on January 15, 1969, and March 4, 1969, and the Court, having considered the evidence adduced at the trial, the briefs submitted by the parties, and the oral arguments of counsel, makes the following:
1. On August 19, 1963, the United States entered into a contract with the defendants, t/a American Roofing Company (hereinafter sometimes called American) for the re-roofing of Building 101 at the Naval Research Laboratory in the District of Columbia. American is designated in the contract as "Contractor".
Section 11 of the general provisions of the contract provided that "the contractor shall give his personal superintendence to the work or have a competent foreman or superintendent, satisfactory to the Contracting Officer, on the work at all times during progress, with authority to act for him."
Section 12 of the general provisions of the contract required:
"(The Contractor) shall be similarly responsible for all damages to persons or property that occur as a result of his fault or negligence. He shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others * * *."
Paragraph 24, sub-paragraph (c) of the contract provided: "(The Contractor) shall provide and maintain all * * * other devices necessary to provide for safety and traffic."
Paragraph 24, sub-paragraph (d) provided: "* * * the contractor will comply with all pertinent provisions of the publication 'General Safety Requirements' * * *."
Paragraph 1-1, page 1 of the General Safety Requirements states as follows: "Each employee shall be provided initial indoctrination and such continuing instruction as will enable him to conduct his work in a safe manner." Paragraph 20-2, page 73, states as follows: "Stairs, ladders, or other safe means of access shall be provided to all work areas."
2. At the time the parties entered into the above mentioned contract and at all times material thereafter, a permanent ladder was attached to the southwest corner of Building 101, extending from the ground level to the roof. After the contract was entered into and at some time prior to September 24, 1963, another government contractor installed two pipes in a horizontal position along the wall of the building. These two pipes obstructed the upper rungs of the permanent ladder and were in place on September 24, 1963. These obstructions were not visible unless one walked to the edge of the building and looked down. In order for one to descend from the roof of the building by the permanent ladder it was necessary for him to turn around with his back to the edge of the roof and descend backwards.
4. On September 24, 1963, Owen White, an employee of American reported for duty at Building 101. This was White's first day to work at Building 101. He ascended to the roof by means of American's portable extension ladder on the north side of the building and, after performing a few minute's work on the roof, requested from his foreman, Warren (Sid) Turner, permission to change clothes. White was given such permission and was directed by Turner to use the ...