Shell Oil Co. v. Blanks
| Decision Date | 26 February 1959 |
| Citation | 330 S.W.2d 569,46 Tenn.App. 539 |
| Parties | SHELL OIL COMPANY, Plaintiff in Error, v. George W. BLANKS, Defendant in Error. 46 Tenn.App. 539, 330 S.W.2d 569 |
| Court | Tennessee Court of Appeals |
[46 TENNAPP 541] Campbell & Campbell, Chattanooga, for plaintiff in error.
Harry Berke, Chattanooga, for defendant in error.
George W. Blanks sued Shell Oil Company and C. A. Bonam for damages for personal injuries sustained on May 15, 1957, when a steel pole he was painting gave way causing his ladder to fall and throwing him upon the concrete surface of a filling station operated by Bonam as lessee of Shell Oil Company.
On undisputed evidence that Shell Oil Company assumed the obligation of maintaining the pole and that Bonam had nothing to do with the employment of plaintiff or with the installation or maintenance of the pole, a verdict was directed for Bonam. There is no complaint as to that action of the Court. The motion for a directed verdict of Shell Oil Company was overruled and the jury returned a verdict against it for $42,500.
Defendant moved for a new trial which was overruled and it has appealed, insisting that the pole, though defective in the respect hereinafter shown, was sufficient to [46 TENNAPP 542] support a string of lights, the purpose for which it was being maintained; that plaintiff was guilty of contributory negligence as a matter of law in leaning his ladder against the pole when he knew or should have known of the defect; that, in any event, plaintiff was not in its employ but in the employ of an independent contractor and it, therefore, owed him no duty to provide him with a safe place to work or other duty except not to wilfully injure him while on the station premises.
The steel pole in question was of a type used by defendant on all of the stations it leased to operators in Chattanooga. It was some 25 feet in height tapering from the ground up to the top where it was 2 to 3 inches in diameter. It was so hinged or pivoted near the middle that the top of the pole could be lowered to the ground by means of a rope attached at the top for the purpose of changing light bulbs, and then raised again by pulling on the rope. When erected it was securely fastened in place at the pivot by a bolt and tap. On this particular pole, the bolt and tap, some years prior to the accident, had become defective and could not be used to keep the pole erect. As a substitute, smooth wire had been used to wrap around the pole to prevent it from tipping over.
According to credible evidence, defendant had been notified of the defective condition of the pole but had failed to replace the bolt and tap. It is inferable that when its service man would discover that a light bulb needed to be replaced he would unwrap the wire, lower the top of the pole to replace the old bulb, then raise it and again wrap the wire around it and that each year when the pole was painted the wire would be painted over causing the appearance of the wire and pole to blend.
[46 TENNAPP 543] By the terms of its lease defendant assumed the obligation of maintaining the stations, including the poles, and keeping them painted. For 1956 and 1957 and up to the date plaintiff was injured, J. K. Keith had the contract with defendant to keep the stations, including the station leased and operated by Bonam, painted. Plaintiff had been in the employ of Keith for about two months. He had painted many of the poles in an upright position without incident. He was instructed by Keith whenever possible to keep his ladder out of the way of customers of the station and, to observe this instruction, just prior to the accident, he placed his ladder on the defective pole in such position that the weight of his ladder tended to push the pole in the direction the pivoted joint permitted it to be lowered at the top. He then ascended the ladder intending to paint down the pole. When he reached the top, the wire which had been improvised as a substitute for the bolt and tap broke causing the pole to bend at the pivot. He was thrown violently to the paved surface of the station and painfully and seriously injured.
There is evidence that it was not practicable to attempt to lower the top of the poles and paint them in a horizontal position because of the interference with customers of the station and the difficulty of placing them back in an erect position while the paint was still wet. Plaintiff testified that he knew nothing of the defective condition of the pole in question and failed to notice the wire wrapped around the pole. There is also evidence that others who had passed the pole frequently had never noticed the wire or the defective condition of the pole.
Defendant's agents and employees, knowing of the defect, gave no notice to Keith or to plaintiff. It gave no [46 TENNAPP 544] instructions that the poles should or should not be painted while erect or that this particular pole, because of the defect, could be safely painted only in a horizontal position.
We think defendant is correct in its insistence that Keith was an independent contractor over whom it had no right of control. But, does this relieve it of all duty to Keith's employees and, particularly, the duty either to warn them of the danger or remove it?
While there are cases to the contrary, the weight of authority is to the effect that the owner or occupier of the land, with certain exceptions, is duty bound to use reasonable care to provide a safe place in which an independent contractor and his employees can work. Hammond v. El Dorado Springs, 362 Mo. 530, 242 S.W.2d 479, 31 A.L.R.2d 1367 and Annotation 1375; Annotation 44 A.L.R. 990; 35 Am.Jur. 590, Master and Servant, Section 161. The rule applies to instrumentalities or appliances furnished by the contractee. 57 C.J.S. Master and Servant Sec. 603, p. 376.
An exception to the general rule is recognized where the risks arise from, or are intimately connected with, defects of the premises or of machinery or appliances located thereon which the contractor has undertaken to repair. As to contracts for such repair work, it is reasoned that the contract is sufficient in itself to impart notice of a...
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