This is an appeal by Abe S. Allen from a take nothing judgment in his suit against Texas Electric Service Company.
Appellant was seriously injured when he came into contact with an uninsulated energized wire carrying 7,200 volts, while working for R. B. Stovall Construction Company, and was paid $27,404.00 by Stovall’s compensation insurance carrier. Appellee had contracted with Stovall to change ou1. *867 cross arms of its power lines which needed replacement, and to rеplace small wires, known as No. 4 ASCR, with larger wires, known as No. 4/0 Aluminum, in which work appellant was engaged when he received his injuries. The method employed in replacing the wires was to leave the energized smaller wire in service and to replace it in sections by pulling in the heavier wire with a rope and fastening it alongside the energized lighter wire and then to de-energize the lighter wire and to energize the heavier wire. This method required anchoring points for both the new and the old wires, and these anchoring points were established by putting in what were called “double dead-ends”. Appellant and his coworker Davis were putting in double dead ends when appellant was injured.
Appellant alleged in substance that ap-pellee retained such right of control and supervision as to make it liable for appellant's injuries, which, it is alleged, resulted from appellee’s failure to exercise, its сontrol with reasonable care; that the work contracted to be done by Stovall was inherently dangerous, and that appellee had the nondelegable duty of supervision and enforcement of safety measures, which duty it failed to perform; that it was negligent in furnishing insufficient and defective equipment; that it was negligent in failing to furnish a safe place for appellant to work; and that such acts of negligence were proximate causes of appellant’s injuries.
The jury acquitted appellee of negligence with respect to the furnishing of equipment and the condition of the place of work; found that the work was inherently dangerous, and that appеllee was negligent in failing to cause a foreman or superintendent to make a safety survey of the contemplated job, in failing to make recommendations of precautions to be used, and in failing to require a fоreman to supervise; and that such acts of negligence were proximate causes of appellant’s injuries. Causative acts of negligence were found against Stovall in failure to require a foreman to watсh the performance ot the work, in failing to make a safety survey, and in failing to insist upon the proper use and application of safety equipment, but none of such acts was found to he the sole proximate cаuse. The jury also found that the action of appellant in starting to make his dead-end connection before his fellow employee, working on the other end of the connection, had finished his work, was contributory negligenсe. Damages were found in the amount of $190,600.
On motion by appellant the court disregarded the finding as to contributory negligence, but overruled appellant’s motion for judgment; and on motion by appellee it disregarded the findings thаt the work was inherently dangerous, that appellee was negligent in failing to make a safety survey, in failing to give precautions to be followed, and in failing to require a foreman to supervise the progress of the work being dоne by appellant, and sustained appellee’s motion for judgment.
By exhaustive brief and oral argument appellant ably presents the contentions that it was shown that appellee retained such right of control as to make it liable for appellant’s injuries, and that appellee had the nondelegable duty to enforce safety rules and precautions in the performance of work found by the jury to be inherently dangerous. We are unable to agree with appellant’s contentions.
The general rule is that the owner-contractee is not liable for injuries sustained by employees of an independent contractor in the performance of the work which has been engaged. Continental Paper Bag Co. v. Bosworth, Tex.Civ.App.,
In his brief appellant admits that the written contract between appellee and Stovall had no provision as to appellee’s right or lack of right to control the work of Stovall. Our careful search of the record fails to disclose any evidence of appellee’s right of control, other than to see that the work was done in accordance with the contract. Appellee did not direct Stovall’s employees in their work. They took orders only from Stovall. No issue was submitted or requested as to appellee’s right of control; and since appellant alleged that he was working as an employee of Stovall when he sustained his injuries, and that Stovall was doing the work under a contract with appellee, it would appear that it was appellant’s burden to show conclusively, or obtain a jury finding of, the existence of the right of control in ap-pellee. Grant v. Marshall,
Another exception to the general rule of non-liability of the owncr-contractee seems to exist where the contractor’s еmployees are injured as a result of conditions attending work which is unusually dangerous in itself as the result of circumstances brought about by the owner-contractee. Sun Oil Co. v. Kneten, supra; Continental Paper Bag Co. v. Bosworth, supra; 23 Tex.Jur., sec. 22, p. 569.
It appears that there was no hazard connected with the work which appellant was doing which was known to appellee and not known to appellant. Stovall furnished all of the safety equipment with which the work was done. Appellant was familiar with the work, and he said that he understood the danger involved should he come into contact with the energized line. He was an experienced electrical worker, having been a lineman for eleven years, a first class lineman for several years, and a foreman for three companies. He said that he supposed he had made, or assisted in making, or supervised the making of, seven or еight thousand dead-end connections, but he would not say that thousands were made on energized lines. The voltage on some of the energized lines on which he had made dead-end connections was as high as 12,000 or 12,500. Although at one place in the record appellant testified that the dead-end shoes which were furnished him by Stovall should be used for making connections on copper wires, and that another type of shoe would be better for aluminum wires, with which he was then working, at another point he testified as follows:
“Q. Was there anything lacking there that * * * Stovall * * * failed to have on the truck that you figured, based on your experience, that you needed to make that cut? A. No, sir.
“Q. Everything was there? A. Yes, sir.
“Q. Did you employ it all, use it all, in making the cut ? A. All that I needed, yes, sir.”
It is not known how or why the accident happened. Appellant said that he did not know whether his foot got into the neutral wire. He testified:
“Q. * * * Did you fall or lose your balancе or just what happened? A. I don’t know. * * *
“Q. * * * Did you slip? A. No, Sir, I ca?r't say that I slipped.
“Q. And do you testify that you don’t know what happened? A. That’s right. * * *
“Q. And in making that loop, is it possible that the wire got loose from you and hit you on the shoulder? A. Yes, sir.
“Q. It would just spring out, is that right? A. Yes, sir.
*869 “Q. And if that didn’t happen, what is your other opinion as to how the accident happened? A. Well, I could have slipped, the hooks.
“Q. Your climbers could have slipped? A. Yes, sir, but I don’t think they did. Of course, I don’t know. I couldn’t be positive either way, onе way or the other.
“Q. You don’t have any opinion about it now? A. No.”
We cannot bring ourselves to believe that this record shows that appellee failed in any duty it owed to appellant, or that anything it might have done during the progress of the work would have prevented thе accident.
In Robert E. McKee, Ganeral Contractor v. Patterson,
In Deaton v. Board of Trustees of Elon College,
In Hammond v. City of El Dorado Springs,
In Le Vonas v. Acme Paper Board Co.,
Our disposition of the case makes unnecessary a determination of other contentions set forth in appellant’s brief.
The judgment is affirmed.