The salient facts are as follows:
Plаintiff was employed as a welder’s helper by the Fithian Contracting Company, an independent contractor, which, under a written contract with the defendant, was laying a six-inch gas line for it along Belle Vista avenue, running in a northerly and southerly direction in the city of Youngstown. Defendant had its inspectors “on the job” to see that Fithian performed its work according to specifications.
A twelve-inch high-pressure gas main belonging to defendant extended east and west along Mahoning avenue. On October 19, 1950, the employees of Fithian, including plaintiff, attached by a nipple and sad-
On Octobеr 20,1950, a pipe fitter, who was a Fithian employee, engaged himself, under orders from his foreman, also a Fithian employee and also plaintiff’s foremаn, in removing the cap from the end of the six-inch pipe. During such process, the cap blew off, due to the pressure of gas which had seeped through the gate valve, and struck plaintiff on the legs, causing the fracture of one of them.
There was testimony strongly indicating that the pipe fitter proceedеd improperly in attempting to remove the cap in that he cut the iron rods strapping the cap before loosening the bolts to permit the esсape of any gas which might have accumulated behind the cap. At the time of his injury, plaintiff was standing in the trench a short distance back of the pipe fitter and talking to other Fithian employees.
To sustain his right of recovery, plaintiff, as did the lower courts, relies heavily on the case of Bosjnak v. Superior Sheet Steel Co.,
' “An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained by the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safе condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by аnd not obvious to the invitee. ’ ’
See, also, Hozian, an Infant, v. Crucible Steel Casting Co.,
Plaintiff contends, as stated in the brief filed by his counsel, “that where an owner [defendant] having
Most оf the cases cited and relied on by plaintiff involved a situation where an independent contractor and his employees entered upon the рremises of the owner or occupier thereof, at his invitation, to perform work for him, unaware and uninformed as to a dangerous condition on the рremises created by the owner or of which he had knowledge. In such circumstances, an employee of the independent contractor, who suffеrs injury by reason of the dangerous condition may recover damages from the owner for such injury, on the ground that the owner is chargeable with actionablе negligence in failing to remove the dangerous condition or to give notice or warning of its existence.
In the instant case, an entirely different situation is рresented. Here, Fithian, an independent contractor, was engaged by the defendant to lay gas pipes for it. As an incident of such engagement, a рipe was attached to a high-pressure gas main and later capped, which project was carried out by employees of Fithian, including plаintiff, as a part of the work they were hired to do. By the very nature of the work and what was done in performing it, Fithian, through its foreman and the welder, plaintiff’s immediatе superior, was fully aware that gas might enter the pipe past the gate valve and of the potential danger which plaintiff might encounter. In these cirсumstances, it was Fithian’s duty to warn and protect the plaintiff, and no such duty devolved on defendant. See Union Tank & Supply Co. v. Kelley (C. C. A. 5), 167 F. (2d), 811,
The rule of general acceptance is that where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor’s employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor. Such principle was recognized and applied in the follоwing cases:
Salmon v. Kansas City,
Or, stating the matter a little differently, one who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreсiating that there is a condition of danger surrounding its performance. See Grace v. Henry Disston & Sons, Inc.,
It is always important to remember that in order to establish “actionable negligence” three essential elements must be shown, namely, а duty or obligation on the part of the person charged with such negligence to protect another from injury, a failure to discharge
Under the circumstances disclosed by the evidence in this case, it is our opinion that defendant’s motion for a directed verdict at the close of all the evidence should have been sustained. Wherefore, the judgment of the Court of Appeals is reversed and final judgment is rendered for the defendant.
Judgment reversed.