Nance Exploration Co. v. Texas Emp. Ins. Ass'n

• Decision Date: 31 July 1957
• Docket Number: No. 5226,5226
• Citation: 305 S.W.2d 621
• Parties: NANCE EXPLORATION COMPANY, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION et al., Appellees.
• Court: Texas Court of Appeals

Page 621

305 S.W.2d 621

NANCE EXPLORATION COMPANY, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION et al., Appellees.

No. 5226.

Court of Civil Appeals of Texas, El Paso.

July 31, 1957.

Rehearing Denied Oct. 2, 1957.

Stephen F. Preslar, Rankin, Raymond A. Lynch, Turpin, Kerr & Smith, Midland, for appellant.

Forrest Bowers, Huff & Splawn, Lubbock, for appellees.

Edwin T. Stitt, Sisterville, W. Va., for intervenor.

WILLIAMS, Justice.

The nature of this case is succinctly stated by the appellee, as follows:

'This is what is commonly designated as a third party suit instituted by appellee David Lee Flowers against Nance Exploration Company, West Texas Utilities Company and Gulf Oil Corporation in the 83rd District Court of Upton County, Texas. Texas Employers' Insurance Association intervened to recoup the amount of money paid by it to David Lee Flowers pursuant to the policy of Workmen's Compensation Insurance issued to D. A. Peachee Drilling Company, appellee's employer at the time of the accident.

'D. A. Peachee Drilling Company, appellee's employer, had entered into a contract with appellant to do certain seismograph work in and around Upton County, Texas, for and on behalf of Gulf Oil Corporation. While engaged in such work the mast on the drilling rig operated by D. A. Peachee Drilling Company came into contact with an electric power line carrying 66,000 volts of electricity causing injuries to the plaintiff resulting in amputation of both legs below the knee as well as almost complete loss of use of his right arm. After all parties had closed, the trial court instructed a verdict in favor of Gulf Oil Corporation and West Texas Utilities Company and submitted the case to the jury as against Nance Exploration Company alone.

'Based upon favorable answers to the issues as submitted to the jury the trial court entered judgment for David Lee Flowers in the sum of $127,671.11 and in favor of the intervenor, Texas Employers' Insurance Association in the sum of $15,879.89, plus interest and costs and $1500.00 attorneys fees for the intervenor. From such judgment Nance Exploration Company has appealed.'

The record in this case is quite voluminous, consisting of some 800 pages, and there are approximately 200 typewritten pages of briefs filed by each party. Appellant sets up 39 points of error.

Since we are to hold that several facts are established as a matter of law, it is necessary that we give a rather full summation of the evidence. This we take from appellant's Statement of Facts, to which appellee concurred.

The accident happened on land owned by the University of Texas. West Texas Utilities Company owned a right of way granted by the University for the construction and maintenance of a 66,000 volt H-frame electric transmission line, which land was under an oil and gas lease from the University to Gulf Oil Corporation. Gulf Oil Corporation entered into a contract with appellant, a seismograph exploration company, whereby appellant agreed to conduct seismograph surveys for Gulf. Appellant, Nance Exploration Company, in turn contracted with D. A. Peachee Drilling Company for the drilling of the pattern shot holes. Appellee was employed by Peachee Drilling Company as a driller's helper. It therefore seems that appellant stood in the position of the general contractor, and Peachee Drilling Company, as a sub-contractor, and it likewise seems quite clear that each operated as an independent contractor. Neither supervised the work of the other. Appellant's surveyor located where the holes should be drilled, and Peachee Drilling Company agreed to drill them. Some of the holes were on the north side of the fence line, and some on the south side. The power line was of standard H-frame construction, each H-frame consisting of two high poles with cross braces, and with three heavy, uninsulated wires fourteen feet apart. Peachee Drilling Company's crew consisted of a Mr. Bailey, who was overseer or foreman, Mr. Greer, who was the driller, and appellee, Flowers, who was the driller's helper. After they had drilled eight holes on the north side of the fence, the drilling truck, which consisted of a regular truck with a 35-foot mast, was moved to the south side of the fence, and in order to make this move, the mast was lowered so that the truck could be driven under the highline. Appellee drove the truck in this operation and, after seven holes had been drilled on the south side, he drove the truck to the eighth and last south side hole. In moving from hole to hole, the mast was left up, but to go under the highline, it had to be lowered, as it extended 35 feet into the air when up, and the power line was not this high from the ground. Appellee testified that as he drove the truck up to the last hole, Greer was directing him and was looking up at the power line, and that he himself opened his cab door and looked up at the power line. He further testified that he knew it was a high power line, and knew that it was more powerful than the wires you see around town. He also testified that there was nothing to keep him from seeing the line; that he noticed the highlines when he arrived at the location; that he realized they were high power lines; that he realized that before the accident; that the wire didn't look like it had rubber wrapped around it. He also testified that said wire was slightly larger than a fountain pen. It is undisputed that even this last, the sixteenth hole, was drilled without incident, and appellee testified in this connection:

'A. 'Yes, the mast, he was going to let it down like that (indicating) and when he did, why it hit the highline.'

'Q. I said, 'Now, actually, if he hadn't of let that mast down, you would have gotten in the truck, backed off and never had any trouble?', and what did you say? A. 'That's right.' * * *'

'A. 'I was putting it in the hole and the driller was letting down the mast.'

'Q. 'I see. Now, the driller there, standing beside you, let the ----', and what did you say? A. 'The mast down.'

'Q. And, I asked you: '---- was letting the mast down? And, when he did, the mast ----', and what did you say? A. 'Hit the highline and that's what happened."

In another place appellee testified that the only way the accident could have happened was for his helper, Greer, to have let the mast down into the wire.

On the question of notice, or obviousness of the danger, Bailey testified that while Greer was drilling the first hole, he and appellee walked out to the power line, and that he, Bailey, told Flowers that they could not pull forward on those holes, but would have to back up, because the highline was too close; that they would have to be careful not to go over the shot point; and that they talked about the highline, and he cautioned appellee. He further testified that he cautioned Greer, and told them they would have to back away from the power line before they could fold the mast. Appellee denied receiving this warning, but it is undisputed that Bailey, the forman, realized the danger; and that he told Greer of it. It is likewise undisputed that Bailey, Greer and appellee all worked for Peachee Drilling Company, Bailey being the foreman, Greer the driller, and appellee the driller's helper.

At the close of the evidence, the appellant presented a motion for instructed verdict, setting up all the defenses now urged. He likewise duly objected to the negligence issues on the grounds of no evidence of breach of duty, and no evidence of negligence, but all such objections were overruled:

'In response to special issues submitted by the court, the jury found that this appellant was negligent in failing to provide Flowers a safe place to work (S.I. Nos. 1 and 2), in ordering, instructing or requiring Flowers to work near an electric power line carrying high voltage electricity (S.I. Nos. 4 and 5), in failing to warn Flowers that he was being required to work in an intrinsically and inherently dangerous place (S.I, Nos. 7 and 8), in locating the place where the hole was to be drilled where Flowers was injured (S.I. No. 10), in ordering, instructing or requiring Flowers to work in an intrinsically and inherently dangerous place (S.I. Nos. 12 and 13), in failing to request West Texas Utilities Company to stop the flow of electricity through the electric power lines (S.I. Nos. 15 and 16), and in failing to warn Flowers that they had failed to request West Texas Utilities Company to stop the flow of electricity through the electric power lines (S.I. Nos. 18 and 19).'

After return of the verdict, appellant filed its motion to disregard the above findings on the grounds of no evidence and no duty, and also filed its motion for judgment n. o. v., setting out the points of error now urged. Though duly presented, both motions were overruled by the trial court. All of the foregoing rulings of the court were assigned as error in appellant's motion for new trial.

Under the undisputed evidence in this case, including appellee's testimony, we conclude, as a matter of law: (1) that the danger inherent in this high power electric line was open and obvious; (2) that appellee knew of and realized the danger; (3) that as a matter of law he was charged with the danger, whether he realized it or not.

The law of Texas seems to be well settled in this regard by the Supreme Court in Robert E. McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391, 393, wherein it is said:

There are certain qualifications not there expressed. It is now well established in this state that the duty as there expressed does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate or should appreciate its dangers. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497; A. C. Burton Co., Inc., v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hausman Packing...