Delhi-Taylor Oil Corporation v. Henry, DELHI-TAYLOR

Citation416 S.W.2d 390
Decision Date31 May 1967
Docket NumberNo. A--11582,DELHI-TAYLOR,A--11582
PartiesOIL CORPORATION, Petitioner, v. Will Ray HENRY, Respondent.
CourtSupreme Court of Texas

Keys, Russell, Watson & Seaman, James C. Watson, Corpus Christi, for petitioner.

Hubert L. Stone, Jr., Auforth & Bonniwell, Fred C. Auforth, Corpus Christi, for respondent.

CALVERT, Chief Justice.

We granted writ of error in this case to review the holdings of the court of civil appeals with reference to the duty owed by an occupier of land to warn invitee-employees of an independent contractor of dangers on the premises which are not open and obvious.

Respondent, Will Ray Henry, an employee of Roy Vickers Lease Service, an independent contractor, suffered severe injuries while prosecuting the work of his employer on premises under the control of petitioner, Delhi-Taylor Corporation. Henry was engaged in welding operations when a dragline bucket, operated by another Vickers' employee, punctured one of Delhi-Taylor's pipelines which contained toluene, a highly flammable gas. The gas escaped and drafted into a ditch where Henry was working with his welding torch. The gas ignited and Henry was badly burned. His suit of damages was tried to a jury. The jury found that Delhi-Taylor negligently failed to inspect the toluene line to determine the amount of pressure therein before the dragline was used to uncover it, and negligently failed to release the pressure on the toluene line before the dragline was used to uncover it, and further found that such negligent omissions were proximate causes of the plaintiff's injuries. The trial court rendered judgment on the verdict awarding Henry a recovery of his damages as found by the jury. The court of civil appeals affirmed. 403 S.W.2d 885. We reverse the judgments of the courts below and here render judgment that the plaintiff take nothing.

Delhi-Taylor owns a refinery at Corpus Christi and owns and operates sixteen pipelines which carry various hydrocarbons from the refinery to the docks on the ship channel. The lines varied from two to sixteen inches in diameter and were buried in the ground at depths varying from four inches to ten feet. Roy Vickers Lease Service was employed by Delhi-Taylor to extend the casings around the pipelines where such lines passed under a private roadway. A dragline was used to uncover a twenty-four inch casing by digging a ditch three feet wide, ten feet deep and twenty-seven feet long. Some of the dirt removed in cutting the ditch was dumped temporarily over some of the other pipelines. Henry went into the deep ditch to weld the casing. The dragline operator then began to use the machine to remove the dirt covering the other lines. It was during this operation that the line containing the toluene was punctured. Toluene was not under pump pressure in the pipeline when it was punctured; that which was in the line was residual and the pressure which caused it to spurt out of the line was static pressure, with some slight pressure from thermal expansion.

Vickers and his employees were on the premises as business invitees of Delhi-Taylor. The law is now well established in this State that an owner or occupier of land may relieve himself of liability for harm to his invitees from dangerous conditions on the premises which are not open and obvious by taking proper precautions to protect them from the dangers or by warning them thereof. Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.Sup.1963); Western Auto Supply Co. v. Campbell, 373 S.W.2d 735 (Tex.Sup.1963). The law is equally well established that the owner or occupier owes no duty to his invitees either to eliminate or to warn of dangerous conditions on the premises which are as well known to them as they are to him. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497 (1952). In this context of established law, Delhi-Taylor contends here, as it did in the court of civil appeals, that although it may have failed, as the jury found, to take reasonable precautions to protect Henry from the danger of gas escaping from its pipelines, it is nevertheless not liable to Henry because its duty to warn him of the danger was fully discharged by warning given to and knowledge on the part of Henry's employer and his employer's foreman.

The court of civil appeals seems to have assumed that an adequate warning of the danger given to Vickers or to Vickers' foreman would have discharged Delhi-Taylor's duty to Henry; but that court held that the evidence did not establish as a matter of law that the warning given was adequate, and that Delhi-Taylor waived its right to a fact finding on adequacy by failing to request a jury issue thereon. We do not agree with the holding of the court of civil appeals. It is our opinion that the evidence establishes conclusively that the dangerous condition on the premises which resulted in injury to Henry was, in the light of the warning given, as well known to Vickers and his superintendent-foreman, Bernie B. Smith, as it was to Delhi-Taylor.

Both Vickers and Smith had many years' experience in working on and around pipelines carrying petroleum products. Vickers had devoted a good bit of his time during fifteen years in the business to work which 'necessitated the uncovering of buried lines,' and was 'thoroughly familiar with the work.' According to him, it is 'a fairly common practice' to uncover pipelines with a dragline, and 'lots of times' he had used a dragline to uncover 'loaded lines' or 'gas lines under pressure.' Smith had been district superintendent for Vickers for five years and had seventeen years' experience working around loaded pipelines. He had worked for a number of employers and had been a pipeline superintendent where he 'had a double dose of loaded lines.' According to Smith, the precautions to be taken when working around pipelines are standard, i.e., '* * * any existing line, you assume to be loaded * * *.'

The very work which Vickers undertook for Delhi-Taylor was the uncovering of the dock loading lines and the placing of the lines in casings. Both Vickers and Smith were shown a plat of the lines before the work...

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