Phillips Petroleum Company v. Gibson

• Decision Date: 23 May 1956
• Docket Number: No. 15653.,15653.
• Citation: 232 F.2d 13
• Parties: PHILLIPS PETROLEUM COMPANY, Appellant, v. Joe GIBSON and Traders and General Insurance Company, Intervenor, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F.2d 13 (1956)

PHILLIPS PETROLEUM COMPANY, Appellant, v. Joe GIBSON and Traders and General Insurance Company, Intervenor, Appellees.

No. 15653.

United States Court of Appeals Fifth Circuit.

April 19, 1956.

Rehearing Denied May 23, 1956.

COPYRIGHT MATERIAL OMITTED

William L. Kerr, Carl W. Jones, Layton A. Webb, Midland, Tex., Rayburn L. Foster, Bartlesville, Okl., Raymond A. Lynch, Midland, Tex., Harry D. Turner, Bartlesville, Okl., Turpin, Kerr & Smith, Midland, Tex., of counsel, for appellant.

W. O. Shafer, Odessa, Tex., Henry D. Akin, Jr., Claude Williams, J. O. Bean, Dallas, Tex., McDonald & Shafer, Odessa, Tex., Gallagher, Francis, Bean, Wilson & Berry, Williams & Akin, Dallas, Tex., for appellees.

Before BORAH, TUTTLE and JONES, Circuit Judges.

BORAH, Circuit Judge.

Joe Gibson brought this suit against Phillips Petroleum Company, seeking damages for personal injuries sustained by him as the result of the explosion of a kerosene drum upon which he was standing while welding on Phillips' premises. Thereafter, Traders & General Insurance Company intervened, adopting the pleadings of plaintiff.¹ In his complaint Gibson alleged that the defendant was guilty of negligence which proximately caused his injury. More specifically it was alleged that the defendant failed: (1) to furnish plaintiff with a reasonably safe place in which to do his work and with reasonably safe equipment; (2) to keep a proper lookout for the plaintiff; (3) to make reasonable inspection of the drum in question and to clean said drum and remove the fumes before furnishing it to plaintiff; (4) to tell the plaintiff that the drum in question contained explosive fumes; and (5) to warn plaintiff of the unsafe condition of the drum and of the unsafe condition of its premises.

At the trial the court charged the jury that if plaintiff knew or should have known of the dangers and risks to which he submitted himself, or if he failed to exercise ordinary care for his own safety, or if the injury was brought about by transitory conditions which arose during the progress of the work, or if plaintiff was guilty of contributory negligence, defendant would not be liable. But on the other hand, if the jury found that the defendant had negligently failed to provide plaintiff, a business invitee, with a safe place to work, and that such negligence proximately caused plaintiff's injury, defendant would be liable. The jury under the general charge of the court returned a verdict in favor of the plaintiff in the amount of $40,000, and this appeal is from the judgment which was entered thereon.

Appellant's principal assignments of error relate to the failure of the trial court to grant its motion for directed verdict and its motion for judgment n. o. v. In support thereof it is urged that appellant breached no duty owed by it to Gibson, in that it was under no duty to keep him from doing that which he knew better than to do nor was it under a duty to guard him against the hazards which he created; that Gibson voluntarily exposed himself to the dangers with which he became involved; that there was no evidence to show that the place of work was a proximate cause of his accident; that the whole of the evidence established that the accident occurred because of Gibson's own acts; and that Gibson was guilty of contributory negligence as a matter of law in that he exercised no degree of care whatever for his own safety. These assignments thus present two principal questions: first, whether appellant breached any duty owed to Gibson, and secondly, whether as a matter of law Gibson's injury proximately resulted from his contributory negligence.

On review of a case such as this, there are several considerations which must be kept in mind. It is well settled law that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and proximate cause are questions of fact to be properly submitted to and determined by jurors from a consideration of all the attending facts and circumstances. On a motion for a directed verdict, as well as on motion for judgment n. o. v., it is the duty of the court to accept as true all the facts which the evidence tends to prove, and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury. Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115, 116.

The evidence viewed in the light most favorable to appellee Gibson is as follows: In February, 1952, appellant, acting through its rig supervisor Cecil Parsons, and one Grady Bars, a welding contractor, entered into an oral contract, under the terms of which it was agreed that Bars was to convert a "mud house",² into a "dog house",³ and then install it on appellant's active drilling rig No. 28. It was mutually agreed that appellant was to supply the needed steel and that Bars was to furnish the workmen, welding equipment and all things except the materials which were needed to do the work. At the time the contract was entered into no mention was made as to who was to furnish scaffolding or equipment upon which to stand when overhead welding work required such equipment. But anticipating that metal drums might be used for that purpose, Parsons as a precautionary measure ordered his employees to move all of the empty gasoline and kerosene drums away from the drilling rig and the site of the "dog house."

When work under the contract began, Bars assigned Gibson to work with him on the conversion of the "dog house". Gibson, a former oil field worker, was an experienced welder and, among other jobs, had done welding work around oil rigs and in a high octane gasoline plant. The conversion work was started at one lease location, but before its completion, the "dog house" was moved to a flat piece of ground on or adjacent to the large caliche covered area on which rig No. 28 was located. By estimated measurement the "dog house" was placed 150 feet southwest of the rig and it was conceded at the trial that its placement at this point did not make Gibson's work either hazardous or dangerous.

At the first location where a part of the conversion work was performed, Bars furnished four or five metal water barrels or drums on which to stand while welding overhead. These "bent up" drums, which had originally been used as oil drums, had been picked up by Bars in January, 1952, on a previous welding job. And when the "dog house" was moved Bars carried these drums in his truck to the new location where they were used for the purpose aforementioned during the first few days of work.

On the morning of February 7, 1952, which was the day immediately preceding the accident, Gibson performed welding work on both the inside and outside of the "dog house." The work which he did on the outside was overhead work on the new doors which had been cut in the north and south sides of the structure. Gibson testified that "Red" Koonz, one of appellant's employees whose services when needed had been made available to him, had that day procured a drum on which he stood while working overhead; and that upon completion of this work he left the drum on the north side of the house where he had been working. It further appears from the uncontradicted evidence that at least two of Bars' water barrels had on that day been left in place on the west side and about 2½ feet away from the "dog house."

On the afternoon of the same day, Gibson did some work on the derrick in connection with the...