Larned v. Wallace

• Citation: 146 So.2d 434
• Decision Date: 05 November 1962
• Docket Number: No. 653,653
• Parties: Arthur Fred LARNED, III., Plaintiff & Appellant, v. E. M. 'Hy' WALLACE, d/b/a Hy's Casing Crew and Fidelity and Casualty Company of New York, Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 434

146 So.2d 434

Arthur Fred LARNED, III., Plaintiff & Appellant, v. E. M. 'Hy' WALLACE, d/b/a Hy's Casing Crew and Fidelity and Casualty Company of New York, Defendants and Appellees.

No. 653.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Rehearing Denied Nov. 28, 1962.

Certiorari Denied Jan. 25, 1963.

Douglas J. Nehrbass, Lafayette, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, Lafayette, for intervenor-appellant.

Felix A. DeJean, Jr., Opelousas, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a tort action. Plaintiff alleges that while he was working on an oil drilling rig an employee of the defendant, Hy's Casing Crew, negligently caused a heavy casing tong to fall on his foot. An intervention was filed by Travelers Insurance Company, as workmen's compensation insurer of plaintiff's employer, Weatherford Oil Tools Company, Inc., for compensation benefits paid to plaintiff. Defendant's answer denies actionable negligence but does not alternatively plead contributory negligence as a bar to plaintiff's recovery. After trial on the merits, the district judge, without assigning written reasons, rendered judgment in favor of defendant, dismissing plaintiff's suit. From this judgment, both the plaintiff and the intervenor have appealed.

There are three principal issues: First, was defendant's employee, Walter Roy, negligent in removing the casing tongs by a method which required that they be raised over the heads of plaintiff and the other men working on the floor of the rig? Second, was Roy negligent in failing to warn plaintiff that the tongs were being raised over his head? Third, was this negligence a legal or proximate cause of the accident?

The record shows that Owens Drilling Company owned the rig and was drilling the well. Owens had subcontracted with Hy's Casing Crew, the defendant herein, for the performance of the casing operation and with Weatherford Oil Tools Company, Inc., plaintiff's employer, for the furnishing of 'centralizers and scratchers' used to stabilize and secure the casing in the hole.

The last piece of casing had been installed and it became necessary to remove the casing tongs from the rig. These tongs weigh approximately 1,000 pounds and are about 3 feet in length and 2 1/2 feet in width. They are power-driven and are used to clamp onto each successive joint of casing pipe and screw it on, before it is lowered into the hole. To facilitate the operation of these heavy tongs, a counter-weight is used. A cable runs from the tongs through a pulley, part way up on the derrick, and then back down through a hole in the rig floor to a weight bucket below. The rig floor is a few feet above the ground. The tongs are normally operated at a height of about 4 to 5 feet above the floor, depending on the height of the tong operator. This cable from the tongs to the weight bucket is called the tongline.

The tongs are attached to the tongline by means of a clevis pin (a U-shaped piece of iron with holes in the ends through which a pin is run and screwed). In order to unscrew this clevis pin and remove the tongs from the tongline, it is necessary to relieve the weight from the clevis pin. Since a weight is suspended on each end of the line, the weight can be relieved on either end. According to the expert testimony, there are three methods by which this can be done. The first is to attach the catline (a line running to the top of the derrick and used to lift heavy objects) directly to the weight bucket, or to the tongline above the hole in the floor, and then to raise the weight bucket until the tongs rest on the floor of the rig with sufficient slack in the tongline for the clevis pin to be unscrewed. This method does not require that the tongs be raised higher than the heads of the men, but it cannot be used on some rigs because the weight bucket will strike the floor of the rig before the tongs reach the floor. The second method is to attach the catline directly to the tongs and simply raise them higher than the heads of the men until the weight bucket hits the ground, thereby giving the necessary slack in the tongline to remove the clevis pin. In this method the tongs are then lowered by the catline to the floor of the rig. The third method, which could be used, is to secure the weight bucket in the raised position with another line, after which the catline can be attached to the tongs and raised the distance of about 1 foot necessary to give slack in the tongline. This third method also does not require that the tongs be raised above the heads of the men.

Regardless of which of these procedures is used, the catline must be employed. The catline belongs to and is operated by an employee of the drilling company. It is a device using physical advantage to lift heavy tools and other objects. The catline runs from the floor of the rig up through a pulley at the top of the derrick and then back down to the cathead, a cylinder or drum which is turned by the main draw works of the rig. The end of the catline which goes to the cathead is made of rope, in order that it will slip on the cathead, around which it is wrapped anywhere from about 2 to 6 times, depending on the weight of the object to be raised. When an object is to be lifted, the operator wraps the catline around the cathead a sufficient number of wraps, that when he pulls on the catline and applies friction, by tightening the catline around the cathead, the object can be raised, as the draw works turn the cathead.

At the time of the accident, Mr. Walter Roy, an employee of the defendant, Hy's Casing Crew, was the tong operator and as such it was his responsibility, on completion of the casing job, to see that the tongs were removed from the rig and returned to his employer. It was Mr. Roy who decided which method to use to unfasten the tongs from the tongline. Insofar as the evidence shows, any one of the three methods described above could have been used. Mr. Roy used Method #2. He attached the catline directly to the tongs and then signaled the catline operator, who raised them from 7 to 10 feet above the floor, thereby causing the weight bucket to hit the ground and the tongline to become sufficiently slack that the tongs could be removed. Mr. Roy then climbed up and stood with one foot on the side of the derrick and one foot on the tongs (then suspended by the catline) and unfastened the clevis pin of the tongline. He then signaled the cathead operator to lower the tongs and Roy stepped back on the derrick. It was at this time that the tongs fell the distance of 7 to 10 feet and capsized onto plaintiff's foot.

Although there is some dispute about it, it is our opinion the evidence shows the cause of the tongs falling was the catline operator 'losing a wrap'. The expert witnesses testified that if a catline operator allows one wrap of his rope to come off the cathead, while lifting a heavy weight, it is very likely that he will be unable to hold the weight up with the remaining wraps. The object will then fall to the floor. One witness testified that he actually saw the cathead operator lose a wrap at the time of the accident. Unfortunately the cathead operator himself could not be located to testify.

At the time of the accident, plaintiff was standing on the floor of the rig, watching the weight indicator and mud gauge, which was part of his job. He was standing in a place where he had a right to be. No warning was given to him by anyone, nor did he know that the tongs were being raised or lowered.

Under the above general facts, the first issue is whether the actions of Roy, in raising the tongs by this method above the head of plaintiff without warning, constituted negligence.

Applicable here is the definition of negligence as conduct creating an unreasonable risk to others, found in 65 C.J.S. Negligence 313 as follows:

'It has been held that negligence does not exist unless there is a reasonable likelihood of danger as a consequence of the act complained of, and it must be measured in the light of some danger that is reasonably to be anticipated. The duty to use care is based on the knowledge of danger, and negligence or want of ordinary care includes reasonable anticipation of harm. So negligence has been defined as conduct which creates an undue risk of harm or injury to others; the failure to use such care as is necessary to avoid a danger which should and could have been anticipated, by reason of which plaintiff has suffered injury.'

This same concept of negligence is expressed by our Supreme Court in the recent case of Brown v. Liberty Mutual Ins. Co., 234 La. 860, 101 So.2d 696 as follows:

'Liability for damages under Article 2315 of the Civil Code is founded upon fault and whether or not fault exists depends upon the facts and circumstances presented in each particular case. In determining fault, a commonsense test is to be applied--that is--how would a reasonably prudent man have acted or what precautions would he have taken if faced with similar conditions and circumstances? The degree of care to be exercised must always be commensurate with the foreseeable dangers confronting the alleged wrongdoer.'

We have little difficulty in concluding that it was negligent to raise the tongs above plaintiff's head without warning. The expert testimony shows that on a drilling rig it is considered unsafe to raise a heavy object over a man's head without warning. While it is recognized that this is inherently a dangerous type of work where many risks must be taken, all of the experts, with the possible exception of defendant's witness, Mr. Henry, testified to the effect that even on a drilling rig it is considered unduly hazardous to raise a heavy object over a man's head without warning him, for fear that something might break or slip and cause the object to fall.

Defendant contends that Roy had no duty to warn plaintiff,...