Watson v. Pence Const. Corp., 15670
| Decision Date | 27 November 1970 |
| Docket Number | No. 15670,15670 |
| Parties | Francia K. WATSON, Guardian, etc., Appellant, v. PENCE CONSTRUCTION CORPORATION, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Foreman, Dyess, Prewett & Henderson, Houston, for appellant; A. D. Dyess, Houston, of counsel.
Fulbright, Crooker, Freeman, Bates & Jaworski, John C. Williams, Wm. H. Payne, Sandra K. Foster, Houston, for appellee.
This is a suit to recover damages sustained by reason of a fall from a building under construction. It is alleged that the fall resulted from a failure of the general contractor to furnish an employee of a subcontractor a safe place to work. The trial court withdrew the case from the jury and entered a judgment denying the injured employee recovery.
Pence Construction Company 1 negotiated a contract with Goodyear Rubber Company, or a subsidiary thereof, for the construction of a building on Harrisburg Boulevard near its intersection with Wayside Drive, in Houston, Harris County, Texas. Thereafter Pence negotiated subcontracts for certain phases of the work. Shelton W. Greer Company 1 entered into such a contract with Pence for the construction of the roof deck.
On June 24, 1966, the date of the accident resulting in this case, the exterior walls, bar joists and supporting members had been completed. A Greer crew had installed galvanized sheet decking over the bar joists the previous day. Travis H. Watson, in whose behalf this suit was instituted, was a foreman employed by Greer to supervise the pouring of vermiculite, an insulating light concrete material, over the corrugated metal decking. This material was pumped onto the roof and spread to the desired thickness. Members of the pouring, or pumping, crew were stationed on the ground as well as on the roof. The welding crew usually left unneeded sheets of metal on the roof to be removed by members of the pumping crew and by them returned to the Greer warehouse. On the day of the accident Watson went onto the roof to remove the sheets of metal and to check the progress of the work. Julius Castle was working as a screed setter on the roof.
A ladder was placed near the northwest corner of the building for use in climbing to the roof. An opening two feet eight and one-half inches square for roof ventilation equipment was located about 24 feet from the north edge of the building and 11 feet from the west edge. The roof framing plan in evidence shows a building in the shape of a 'T' having the dimensions shown on the following drawing.
Castle testified that he talked to Watson at a time when they were standing about six steps from the small opening at the pile of corrugated steel sheets. After Watson told him that his help in moving the metal sheets would not be needed, he turned and had taken about six steps toward the southeast corner of the building where he had been working when he heard someone on the ground level call out that a man had fallen. He then looked around. Watson was not visible. Two metal sheets were about two feet from the opening. He went to the opening and saw Watson lying on the floor beneath it. The small opening (numbered (1) on the drawing) was on a direct line from the stack of metal sheets to the ladder. The hole was framed with 3-inch angle iron.
Castle testified that he had not seen Watson in the immediate vicinity of the hole prior to the five minutes before the accident. He had seen him on the ladder earlier in the morning, but he went back down. After lunch Watson approached Castle on the roof and they went to the pile of metal sheets. He didn't know how long Watson had been on the roof before the accident, but it was possible ten or fifteen minutes. That was the only time he saw Watson on the roof.
Castle testified that he had seen many openings in many roofs. At that time the openings were usually, but not always, covered with plywood sheets. The openings were not covered by the decking crew. The 'construction department' had 'carpenters on the job to do things like that.' He said that once you climbed on the roof 'some' of the openings were readily visible.
Dr. Tonn testified that it was his observation that some contractors covered roof openings and some didn't. It was his opinion that the openings could be covered in such a manner as not to interfere with the work at small expense.
There was no testimony that Watson ever actually saw the opening in the roof through which he fell. Mr. Fulfer, the division roof deck manager for Greer, did not know whether Watson had seen the roof plans or had gone over them with anyone. Greer was furnished a copy of the roof framing plan by Pence. It appears from the testimony of Mr. Fulfer and of Mr. Campbell, the field superintendent for Greer, that they were familiar with the plans and specifications, and, therefore, with the planned location of the open spaces. Since the sheet metal was installed by a Greer crew, some one or more of the Greer employees had actual knowledge of the location of the spaces and of the fact that they were not covered. There is no testimony that any supervisory employee had such actual knowledge.
To sustain the judgment appellee primarily relies on the fact that the roof plans furnished by Pence to Greer showed the opening through which Watson fell. Appellee cites Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967) for the proposition that a general contractor can discharge his duty to warn employees of his subcontractors of a dangerous condition located on the project by 'transmitting information of these dangers' to their supervisory employees. As the court...
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Pence Construction Corporation v. Watson
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