See
dissenting opinion of PROVOSTY, J., 55 So. 653.
MONROE
J. SOMMERVILLE, J., takes no part herein.
OPINION
MONROE
J.
On Rehearing.
As
stated in the opinion heretofore handed down, the derrick was
a towerlike structure, some 85 feet high, which tapered from
bottom to top, and which, at the lower floor, where the
accident occurred, and which was about 3 feet above the
ground, was 22 feet square. It was built of pieces of timber
placed upright, and held together by girders, at intervals of
8 feet, and braces, which ran diagonally from
one set of girders to another. Through the center of the
structure, and the floor, ran the drill (or
"rotary"), consisting of iron piping, with a bit
upon the lower end, and, to the upper end of which, as the
lower end penetrated more and more deeply into the ground
additional joints of pipe were attached. The power by which
the drill was rotated was communicated by means of a chain,
geared upon sprocket wheels, from an engine, standing upon
the ground upon the outside, to a shaft, which ran across the
derrick, on the side nearer to the engine and underneath the
first girders above the floor; thence, by another chain,
similarly geared, from the shaft to a drum, which rested on
the floor, beneath the shaft; and thence, as we understand
the matter, by means of another chain, or a wire rope, to the
drill, or rotary. The driller stood upon the floor, with his
hand upon the lever whereby he started and stopped the
machinery, and in such a position that he could watch the
progress of the drill, to his right, and also keep an eye
upon the drum, nearly in front of him, or somewhat to his
left. He had entire control of the machinery and of the men
who were employed about the derrick, and it was necessary for
him, at intervals, and by means of the machinery, to pull the
drill out of the ground, in order to renew the bits, upon
which occasions it was the duty of the decedent, who was the
"derrickman," to climb to his station, on a floor
50 feet above, by means of a ladder (consisting of
crosspieces nailed to the outside of the derrick) and
"take the lever bar off * * * and put it on again."
Just before the accident, the decedent had been to his
dinner, and Stephens (the driller) describes what then
occurred as follows:
"I
was standing drilling, and he came up on the derrick floor
and came around between where I was standing and the rotary,
in front of the drum and this chain; and he says, 'Are
you going to pull out?' And I says, 'Yes.' He
looked at the rotary for a minute, and says,
'When are you going to pull out?' and I says,
'Right away.' And he turns to look at it again, and,
just as he turned, he took a cigar out of his mouth -- he was
smoking -- and he says, 'It's going good,' and
turned to look at it again, and, as he turned, facing the
rotary, the chain broke, came over the girt and struck him in
the head."
We
think that we can hardly do better than to quote somewhat
further from the testimony of the same witness, as showing
the decedent's reasons for coming up on the derrick floor
at that time and as establishing, or tending to establish, a
basis for a comparison of the negligence with which defendant
charges him with that of which defendant, itself, was guilty.
The
testimony runs as follows:
"A.
He wanted to know if we were going to pull the pipe out of
the hole, in order to put on a new bit. Q. Was that about the
time to do that? A. Yes, sir; been doing it about that time
for a day or two. We didn't have any certain time to pull
it up. Q. Had he made any preparations for going up on the
derrick? A. Yes, sir; he had just gotten through dinner and
had tied a handkerchief over his head to protect his head. Q.
Where was he to go when you would go to pull it? A. He would
go up on the derrick, about 50 feet up. * * * Q. He came
there and asked you if you were going to pull out, and
prepared to go up there and do his part? A. Yes, sir; he was
a man that was always ready to do his part. Q. State whether
he had been there long? A. He had been there about a minute
and a half, or two minutes. Q. Just long enough to say what
you have said?
A. Yes, sir; just long enough to say what he said. * * * Q.
Now, what did he come to you for? A. Well, that is all the
business that I know of; he asked me if I was going to pull
out, and when. Q. He came to you on business, did he not? A.
I don't know whether it was on business or not. Q. You
don't know whether that meant business or not. A.
Information, I suppose he wanted. Q. Information about his
work, was it not? A. Well, I suppose, of course, that applies
to his work; that was not his particular business. Q. Whose
business was it? A. Mine; I would have him come to me. Q. You
would have him come to you? A. Yes sir; if in sight. Q. Would
he stand and watch you and wait until you would motion him to
come to you? A. No, sir; he didn't make it a point to
watch me, but they were generally standing about, so that I
could call their attention. Q. Then what would they do, after
you had called their attention? A. Owing to what I wanted
them to do. Q. Would they come to you? A. Yes, sir. Q. You
would not stop and go to tell them what you wanted done? A.
No, sir. Q. You would have them come to you? A.
Yes, sir. Q. Is there any noise around the drilling? A. Yes,
sir; most everything about it is noise. Q. And that was a
windy and noisy day? A. Yes, sir. Q. Mr. Stephens, was there
anything unusual in his coming to you to get orders? A. No,
sir; it was the usual thing. He come around and talked. * * *
Q. Mr. Stephens, would you expect Mr. Underwood to get up
there on the ladder without knowing whether you were ready to
draw out or not? A. No, sir. * * * Q. Then there was nothing
strange in his asking you the question? A. No, sir."
As
bearing upon the danger to be incurred in going up on the
derrick floor, at all, and in going upon the particular part
of the floor where the decedent was injured, we quote the
following from the testimony of the same witness, to wit:
"Q.
Now, as a matter of fact, is not the driller the only man in
the crew, or is he not, of all men in the crew, exposed to
more danger by the breaking of the chain? A. Yes, sir; of
those two chains. * * * Q. Was there any particular position
that people would take when they would come there to ask you
for orders? A. No, sir. * * * Q. They would come to you
frequently for orders? A. Yes, sir. Q. Just as he did that
day? A. Yes, sir; while not as he did that time; they
didn't, invariably, go around to that particular place. *
* * (Cross-examination.) Q. Is that a dangerous position? A.
Yes, sir. Q. What is the most dangerous position on the floor
of the derrick? A. Well, I don't know. Q. Well, is it not
more dangerous to stand in line with the chains than to stand
out of line with them? A. Yes, sir; some."
J. C.
McCure, superintendent of the Producers' Oil Company,
examined on behalf of defendant, testified that he had been
in the oil business for 20-odd years, and, further, in part,
as follows:
"Q.
Well, what would you say as to the safety of that locality on
the derrick floor, immediately in line with the engine chain
and between the rotary and the drum? A. It is very unsafe, at
any time, in that immediate place. * * * Q. Can you say
whether or not any man of experience knows the danger of the
space on the derrick floor between the rotary and the drum
and in line with the engine chain? A. Yes, sir; I should
think that he would, because that is a very dangerous spot,
and they all should know it, if they don't. Q. Would a
man assume that position, if exercising caution? A. Well, I
am inclined to think not; I would not I know."
W. C. Wolf, also a witness for defendant, and a
builder of derricks, who had been around oil drilling rigs
for eight years, testified in part as follows:
"Q.
Mr. Wolf, what have you to say as to the danger of standing
in front of the drum on the derrick floor in front of the
engine chain; is that a dangerous place? A. Yes, sir. Q.
Would you say that a man who had experience in the drilling
business would know that it is a dangerous place? A. It looks
as if he would. Q. What is the danger of that place? A. The
chains very often break. Q. That is a common occurrence? A.
Yes, sir. (Cross-Ex.) Q. Mr. Wolf, you say that there is no
particular business for a man at the point inquired about
unless he is called there for some purpose; if the driller
had called him there, and he would come around, I suppose he
would come there too? A. That would be left to him as to
where he would stand. Q. There would be nothing remarkable
about the place he stood, if he went to get orders; there is
no place marked out where he should stand? A. No, sir. Q. He
goes to where it is convenient for him to speak to the
driller and for the driller to speak to him? A. Yes, sir; I
should think he would. Q. I suppose people walk about on the
platform -- on all parts of it? A. Yes, sir. Q.
Indiscriminately; there is no dead line in front of this
place? A. No, sir; there are some places that are more
dangerous than others."
Herbert
Lancaster, also a witness for defendant, testifies as
follows:
"Q.
What have you to say as to the danger of standing on the
derrick floor, in front of the drum of the engine chain
while the well is being drilled; is that a dangerous place?
A. To a certain extent, it is, yes; you could not tell; it is
very uncertain. * * * Q. Is it a fact, or not, that a man of
experience in the drilling business knows that it is a
dangerous place? A. I believe that they do. * * * Q. Well,
after this accident happened, didn't you see some of the
boys do something to prevent such an accident in...
