*1 COMPANY, Appellant, SHELL OIL WAXLER, Appellee.
Mitchell V. No. 01-82-0010-CV. Appeals Court Houston. March 1983. 12, 1983. May Denied Rehearing *2 Weinstein, Houston, for appel-
David B. lant. Houston, Milutin, Martin,
John Jack appellee. EVANS, C.J.,
Before and DOYLE and COHEN, JJ.
OPINION
EVANS, Justice. Chief Company appeals a judg- Oil plaintiff, ment entered for the Mitchell V. Waxier, damages in an action to recover injuries personal sustained while premises. plaintiff, on Shell’s Root, Inc., ployee injured of Brown & doing in November while construction work for refinery plant Brown Root at a Park, owned Deer Texas. contracted Brown & Root to con- portion expanded refinery struct improvements, and Brown Root had em- ployed heavy equipment opera- Waxier as tor. Waxier n complaint against negligently failed against premis- condition on its es, resulting being trampled and se- verely injured by his co-employees leaving the Shell site. against Shell filed a cross action Brown & Root, seeking indemnity, contribution and prior took but a non-suit that action response special trial.
found that Shell exercise place care in making the a safe inspect and in failing Waxier to work . exit to enter and that such premises. of the width these lanes. Because through cause of proximate
omissions constituted a lanes, could enter two man- question; the occurrence lane at the through particular exited the and exit ner in which the workmen condition, time. same site created a maintained; either and that Shell pas- specified Upon entry *3 care, knew, ordinary or in the exercise of a pick up would employee each sageway, dangerous nature. should have known of its token, with which coincided brass numbered had not jury further found that Shell employee on his hardhat. the number the dan- remedy exercised care to with keep this brass token would failure to do gerous condition and that its it to and would use throughout day, the the occur- so was also a cause of proximate necessary for the tools out and return check “no” to the issue rence. The answered day, work the the of each his work. At end give inquiring whether site job to exit the were employees plaintiff warning and lanes designated their through premises contributory response In to the condition. them in placing by tokens return the brass that Wax- found negligence In purpose. for that receptacle provided negli- that his negligent ier had been and was able & Root this manner occur- cause of the gence proximate was a daily for the and account payroll audit its that Waxler’s rence. The entry- This employees. its whereabouts of and was 40% percentage negligence of or Alley” the “Brass was called system exit ver- on the was 60%. Based “Brass Shacks”. dict, Waxier the trial court awarded Root that the Brown Waxier testified total $260,458.14, representing sum of job site at the OP-3 working employees 40% of damages, by his reduced amount of through to exit permitted were not sum, $29,341.86which the court by and signaled until the whistle Brass Shacks intervenor, Employ- Texas to the awarded further They were working day. end of the Association, its claim for ers’ Insurance of a side remain on the other instructed to subrogation benefits. from located some distance railroad track whis- Shacks, heard the error, until of the Brass points
In first two were at Waxier, there According to of the evi tle. legal sufficiency challenges employees Root a thousand Brown & no evi least dence, contending that there was site, of job working then at OP-3 legal duty owed a showing dence that it same time at the premises whom left the type inju plaintiff whistle, this hearing the day. Upon each points these ries suffered. ran from customarily evidence, people crowd of great and only the we consider Shacks, Brass to the therefrom, the railroad track which tend to inferences lanes, through out respective through their all evidence disregard judgment lot. parking and into the gate the main contrary. Garza inferences to the Alviar, day ques- that on the testified Waxier the other tion, running with he started injury, he was time of Waxler’s At the Shacks, just but Brass toward the project at on a construction working lane, hesitated he entering job reach the before In order to plant. OP-3 who colliding with a co-worker avoid left site, co-employees and his caused delay him. This in front of lot and en- crossed parking automobiles on Shell’s the mass down him to be knocked gate in a through plant premises tered the Brass through the get trying inside co-workers A short distance chain link fence. momen- dragged He was lanes. had erected and Shack Brown & Root gate, Brass Shacks the crowd buildings or tum of seven small maintaining coworkers between by his trampled and was shacks, lanes about 4 feet separated by gate. He and the front were the Brass employees Shacks width. All Brown & finally managed to drag up himself and out implementing programs. were proper safety of the way link holding on chain that He said Shell was in seeing interested incident, fence. As result of this suf- anything constructed on its fered hip a broken and other serious disabil- was in a used safe manner and that if a ities. existed, dangerous condition would have it rectified. Mr. Hruska admitted that Waxier further prior testified that earlier, deposition had testified in his time he began OP-3 could order contractor con- site, he had worked as a Brown & Root tractor’s employee off employee at another area in the Shell com- violation. plex location, known At CPS. Brown & Root were re- employees also Mr. Hruska also testified that secur- quired to enter and leave the charged ity guards closing way Shacks, of Brass but according to Wax- opening gates lead to parking ier, entirely situation was different area and that Brown & Root *4 existing from that job the site. At required by guards OP-3 were security Shell’s to location, the security CPS re- guards Shell orderly form lines when the exiting CPS quired employees Brown Root to project. form He that he said had observed orderly job site, lines while the existing employees running through guards the prohibited running time, and “horse- quitting the Brass Shacks at but that play”. Waxier said although that se- Shell he had not seen the them this at OP—3 curity guards were present at the OP-3 area. location, did not they try to control the flow rule, As a general a landowner has of employees exiting site, the and that duty no to the employees of an it was every day an the occurrence for independent dangerous contractor from a run employees to the Brass Shacks. land, brought condition on and main Hruska, safety representative tained, and by independent controlled contractor, was called to under contractor. v. Gehring, Strakas adverse party rule. This witness stated (Tex.1962); Lamb, 787 Chemical v. Co.
that it was his all duty keep to track of (Tex.1973). Thus, 493 742 where a S.W.2d injuries employees sustained of con- under dangerous activity is the sole control working tractors for Shell and to see that contractor, independent any danger of the Shell’s contractors performing their activity responsibili from that arising is the jobs safely. He said that Shell also had contractor, ty of the not the landowner. project on engineer site who had v. Development Abalos Oil Co. of 544 total responsibility for (Tex.1976). all facets of 627 S.W.2d project, including safety. He stated that However, a landowner does have a violation, running was safety considered a duty keep to use reasonable care to and that if he had observed employees run- premises safe for invitees. business Smith ning, remedy he would have to steps taken v. 226 425 Henger, Tex. S.W.2d By way example, situation. he told landowner interferes Where a how he had once noticed a contractor’s in a activi with or intermeddles two to on a as riding bicycle three contractor, ty independent conducted plant. exited the said he He that to the contractor’s be held may liable contacted employing contractor and told injuries resulting therefrom. employees that contractor considered this Nobles, v. Remuda Oil & Gas practice unsafe expect- to be and that Shell 1981, no Worth (Tex.Civ.App. —Fort ed the contractor to control it. The con- Also, writ). where a landowner undertakes tractor then remedied the problem. joint contractor over a dan control with his responsible, activity, may
Another
be held
part
gerous
Mr. Hruska’s duties was
feasor,
injured employ
to
to an
periodic inspections
joint
make
of the
tort
his con-
contractor,
though
to
even
premises and
see that
contractors
ee of the
Sand,
See,
jury’s findings
as measured
ages,
trol
is
exclusive.
Baca
comparative negligence issue.
Inc.,
(Tex.App.
—Houston
n.r.e.).
ref 'd
writ
Dist.]
[1st
legally
hold
the evidence is
We
that
suffi-
jury’s findings,
to
support
cient
There was evidence from which
upon
findings,
that based
trial
reasonably
could have
inferred
that
concluding
court did not err
joint responsibility
had assumed
injuries
to
legally obligated
was
Waxier
procedures
with its contractor for
to
safety
premises.
he sustained on
be followed
the contractor’s
points of
first two
over-
Shell’s
premises. Although
on Shell’s
ruled.
there was
which the
also
In its third
of error Shell
jury could have decided that
the Shell had
contends that the trial court erred
enter
merely
monitored its contractors’
he did not
ing judgment for
because
coop
their
practices and had tried
enlist
an affirmative
to the issue
obtain
appropriate safety pro
eration
adopting
to warn
inquiring whether Shell had failed
grams,
required
we are
consider only
It
condition.
evidence,
and the reasonable inferences
position
that Waxier was
therefrom,
jury’s
tend to
danger
prove
remedy
it failed
findings.
It
to evaluate
duty
and failed to warn others of
ous condition
within
testimony,
and was
proof that
its existence.
In the absence of
accept
that version of
evi
province
duty
remedy
both to
breached its
credible.
dence which it considered most
*5
warn,
that Waxier did not
to
Shell contends
Thus,
in
the record to determine
of
proof.
his
In
its
meet
burden of
sup
to
legal sufficiency
of
evidence
Corpora
cites Adam Dante
position Shell
verdict, we
not consider
port the
jury’s
(Tex.1972);
Sharpe,
tion v.
which is con
testimony of the witnesses
Weingarten
Razey,
Inc. v.
426
538
J.
S.W.2d
jury’s
or
find
trary to
inconsistent with the
v.
T. &
(Tex.1968); and Harris Atchison
S.
Alviar, supra. For this rea
ings. Garza v.
(5th
Concurring Opinion Rehearing Motion COHEN, Justice. argu- Although appellant’s I consider strong to be of error one ments case, I concur on the facts of this based states, because, majority opinion points of we “no evidence” therefore, and, we consider and inferences therefrom evidence and disre- judgment, tend to con- evidence and inferences gard Alviar, Graza v. trary. evidence” If “insufficient we would presented, of error were points evidence, which, all the weigh consider differ- might well call opinion, in my assumed whether Shell regarding ent result safety procedures joint responsibility project. PETERS, Appellant, Douglas William Texas, Appellee. The STATE of No. 01-82-0205-CR. Appeals Court of Houston. 10, 1983. March Discretionary Review Refused *7 13, 1983.
July