Abalos v. Oil Development Co. of Texas, B--5602

• Court: Supreme Court of Texas
• Citation: 544 S.W.2d 627
• Docket Number: No. B--5602,B--5602
• Parties: Henry ABALOS, Petitioner, v. OIL DEVELOPMENT COMPANY OF TEXAS, Respondent.
• Decision Date: 24 November 1976

Page 627

544 S.W.2d 627

Henry ABALOS, Petitioner, v. OIL DEVELOPMENT COMPANY OF TEXAS, Respondent.

No. B--5602.

Supreme Court of Texas.

Nov. 24, 1976.

Warren Burnett Associated, Richard J. Clarkson, Odessa, for petitioner.

Gibson, Ochsner, Adkins, Harlan & Hankins, S. Tom Morris, Amarillo, for respondent.

GREENHILL, Chief Justice.

The plaintiff, Henry Abalos, an employee of Ruthco Company, brought suit against the defendant, Oil Development Company of Texas. The suit was for personal injuries sustained by Abalos while working for Ruthco on the defendant's oil and gas lease. The plaintiff's hands and arms were caught in the revolving part of a pump used to bring oil to the surface. The pump and its base were being installed by the Ruthco crew at the time of the accident, and it was being run at the request of the foreman of Ruthco's crew. Abalos realized the danger of working so near the operating pump. His contention is that an employee of the defendant who started the pump at the request of the Ruthco foreman and who was watching the work of the Ruthco crew owed him a duty to warn him, or to stop the pump, particularly under the doctrine of discovered peril.

At the first trial, the district court entered a summary judgment for the defendant. This was reversed by the Court of Civil Appeals, one justice dissenting. 491 S.W.2d 482. We refused the application for writ of error with the notation of no reversible error.

Upon this trial, the district court overruled the motion for summary judgment; and after a trial upon the merits, granted the defendant's motion for an instructed verdict. The trial court's judgment also denied the subrogation claim of intervenor, Texas Employers Insurance Co. who apparently had made compensation payments to Abalos as an employee of Ruthco. The Court of Civil Appeals affirmed, one justice dissenting. 526 S.W.2d 604. We affirm.

The defendant oil company owned several oil leases in Yoakum County. Located thereon were many pumping wells. One of its employees, Curtis Ray Morgan, was generally in charge of several of the leases, the pumps thereon, and their engines. The engines which turned the pumps used natural gas for their fuel. Morgan was called a 'pumper.'

Someone from the defendant company's office determined to place a larger pump and a larger base over one of its wells in Morgan's area. It contracted with Ruthco to remove the old concrete base and pumping unit, and to furnish and install a larger base and pumping unit. The defendant's pumper, Morgan, did not order the work, and his duties did not include any construction on the leases. There is no evidence that Morgan either told the Ruthco employees what to do, or that he had any authority to do so. Ruthco was an independent contractor.

Ruthco's crew consisted of a field foreman, Jess Phillips, and three other men including the plaintiff, Henry, Abalos. The crew took their orders from Phillips, who said that he and his crew would attempt to correct anything Morgan found to be wrong with the new installation.

Before the accident in question, the pump engine had been shut down and its gas line disconnected. The Ruthco crew, with no employee of the defendant being present, undertook the work. After removing the former concrete base and pump, the crew enlarged the hole in the ground to be occupied by the new prefabricated concrete base. Dirt which was removed was piled nearby. The new base was put in its place by the Ruthco crew which installed and aligned the new pump over the hole.

Ruthco's remaining duties were to replace the dirt around the new base and to be sure that the base was level and steady. Then the Ruthco crew would replace the dirt with shovels and pack the dirt by stomping it. To determine whether the newly installed base and pump were steady and would remain so, the Ruthco foreman wanted the pump reconnected and started and to run for a period of time.

Phillips, the Ruthco foreman, testified that they were about through with their operations when Morgan, the defendant's pumper, drove up. Abalos testified that Phillips had hooked up the bridle of the motor. Phillips testified that 'we' rigged up the mechanism, the weights, rods and bridle. Phillips testified that without being asked, Morgan connected the gas line. Abalos testified that Phillips told Morgan, 'I am ready to start it up,' and to start the engine which operated the pumping unit so that he could determine whether the base and unit were level and steady.

The one cylinder engine had to be started like an 'old Model T Ford'--it had to be hand cranked. Phillips testified that these are sometimes hard to start, and that 'it is a lot easier for him (Morgan) to start it than us.' While the motor operated on natural gas, gasoline was sometimes necessary to prime or start the engine. Morgan did crank and start the engine. There is a valve to turn the gas supply on or off. Phillips testified it was his practice to ask the pumper to start the engine and that he would have tried to start the motor if Morgan had not. Phillips was asked, at another place in the record, what he would have done if Morgan had refused to start the motor. He said, 'Well, I would have called the office and told them they wouldn't start the engine. We would just have to leave her down.' Abalos testified that he asked Phillips and Morgan not to start the pump. They denied this, and Abalos worked with the pump moving.

As stated, the defendant's pumper, Morgan, arrived when the Ruthco crew had rigged up the pumping mechanism and was almost, but not completely, finished. He voluntarily hooked up the gas line; and at Phillips' request, started the motor, and the pump began to operate. Abalos testified that he and the others stood around 2 to 4 minutes 'to see if it was going to set level,'--that this was a common practice. Phillips then told them, 'Now let's fill her in.'

Thereupon Phillips, Abalos, and the others began to shovel the dirt back and to stomp it. They had thus worked for 3 or 4 minutes when the accident occurred.

Morgan meanwhile was washing his hands and was preparing to leave to attend to some other duties. He told Phillips that he had to go, that he would throw the motor out of gear, and that Ruthco's man could throw it back in gear when they were finished. Morgan testified that Phillips said that no, he wanted it to run. This was confirmed by Phillips who testified that thereafter, he paid no more attention to Morgan. Phillips asked Morgan if he wanted to leave the unit pumping when we (the Ruthco crew) are through. Phillips testified that 'He (Morgan) said 'yes.' So we (Ruthco) left it pumping, or was going to leave it pumping; still pumping while we back filled.' Asked what Morgan was doing while they were working, Phillips testified that all Morgan had to do was 'just stand and watch.'

Phillips testified that it was his custom to leave the pump running until he was satisfied with the work. He further testified that at the time of the accident, the Ruthco job had not been finished, and that he, Phillips, had not relinquished control over the work to anyone.

The pump has a long overhead beam and a head at the end that sometimes is referred to as a horse's head. Attached to the beam, and below it, is an arm which is attached to a crank and the revolving mechanism to which were attached two large semicircular iron counterweights. It takes the revolving parts, including the counterweights, 6 to 10 seconds to make a full revolution. Stated differently, it revolves 6 to 10 times per minute. It was 'going about medium' at the time of the accident. Phillips thought it was going at about 8 turns per minute, which would make each turn a little over 7 seconds.

The plaintiff, Abalos, had replaced some dirt around the base and was using one foot to stomp it around the moving pump. As he worked, his hands were seen to be extended upward. At this time, the pumper, Morgan, was standing by observing. He was some 25 feet from the controls of the motor. He testified that he saw plaintiff's left arm go over toward the running pump and thought to himself 'that's bad business' because the arm of Abalos was in a dangerous position, and Abalos did not seem to be aware that he was sticking his arm into the machinery. Morgan said he was tempted to say something to him or go to turn off the machinery, but then took no immediate action. Asked if he thought to disengage the motor at that instant, he testified, 'No sir, I had done asked the pusher (Phillips) about turning it off.' Asked why he didn't yell at Abalos if he thought it was dangerous, he testified, 'Well, I just didn't,' and 'I just didn't have time to yell at him.'

At about the time Morgan 'started to holler' at the plaintiff, the revolving counterweight caught the plaintiff's left arm and then his right arm. Morgan then ran for the brake and the clutch. He disengaged the clutch to keep the unit from pumping, and 'pulled the brake off.' This was not a dangerous thing for Morgan to do. The pumping unit had not made a complete turn (6 to 10 seconds) by the time it was stopped by Morgan. It had gone about a half a turn. ¹ There is a good deal of testimony about the revolving counterweights and the mechanism being completely open and obvious. Abalos had been in the oil fields over 9 years and had seen a great many similar pumping units. He testified that he realized the danger and that he had full knowledge that he had to be careful or he might get caught and be hurt. He could not remember why he got so close to the moving weights. Our opinion, however, is not based on the 'no duty' concept attendant to the encountering of an open and obvious danger.

No dangerous conditions existed on defendant's premises when Ruthco and its crew, including Abalos, came upon them to do their work. There is no testimony that an ordinary pumping oil well, such as the one in question, is an inherently dangerous instrumentality or would...