Henry ABALOS, Petitioner, v. OIL DEVELOPMENT COMPANY OF TEXAS, Respondent, 544 S.W.2d 627

GREENHILL, Chief Justice. The plaintiff, Henry Abalos, an employee of Ruthco Company, brought suit against the defendant, Oil Development Company of Texas. The suit was for personal injuries sustained by Abalos while working for Ruthco on the defendant’s oil and gas lease. The plaintiff’s hands and arms were caught in the revolving part of a pump used to bring oil to the surface. The pump and its base were being installed by the Ruthco crew at the time of the accident, and it was being run at the request of the foreman of Ruthco’s crew. Abalos realized the danger of working so near the operating pump.

His contention is that an employee of the defendant who started the pump at the request of the Ruthco foreman and who was watching the work of the Ruthco crew owed him a duty to warn him, or to stop the pump, particularly under the doctrine of discovered peril. At the first trial, the district court entered a

summary judgment for the defendant. This was reversed by the Court of Civil Appeals, one justice dissenting. 491 S.W.2d 482. We refused the application for writ of error with the notation of no reversible error. Upon this trial, the district court overruled the motion for

summary judgment; and after a trial upon the merits, granted the defendant’s motion for an instructed verdict. The trial court’s judgment also denied the subrogation claim of intervenor, Texas Employers Insurance Co. who apparently had made compensation payments to Abalos as an employee of Ruthco. The Court of Civil Appeals affirmed, one justice dissenting. 526 S.W.2d 604. We affirm. The defendant oil company owned several oil leases in Yoakum County. Located thereon were many pumping wells.

One of its employees, Curtis Ray Morgan, was generally in charge of several of the leases, the pumps thereon, and their engines. The engines which turned the pumps used natural gas for their fuel. Morgan was called a “pumper.” Someone from the defendant company’s office determined to place a larger pump and a larger base over one of its wells in Morgan’s area. It contracted with Ruthco to remove the old concrete base and pumping unit, and to furnish and install a larger base and pumping unit. The defendant’s pumper, Morgan, did not order the work, and his duties did not include any construction on the leases.

There is no evidence that Morgan either told the Ruthco employees what to do, or that he had any authority to do so. Ruthco was an independent contractor. Ruthco’s crew consisted of a field foreman, Jess Phillips, and three other men including the plaintiff, Henry Abalos. The crew took their orders from Phillips, who said that he and his crew would attempt to correct anything Morgan found to be wrong with the new installation. Before the accident in question, the pump engine had been shut down and its gas line disconnected. The Ruthco crew, with no employee of the defendant being present, undertook the work.

After removing the former concrete base and pump, the crew enlarged the hole in the ground to be occupied by the new prefabricated concrete base. Dirt which was removed was piled nearby. The new base was put in its place by the Ruthco crew which installed and aligned the new pump over the hole. Ruthco’s remaining duties were to replace the dirt around the new base and to be sure that the base was level and steady. Then the Ruthco crew would replace the dirt with shovels and pack the dirt by stomping it.

To determine whether the newly installed base and pump were steady and would remain so, the Ruthco foreman wanted the pump reconnected and started and to run for a period of time. Phillips, the Ruthco foreman, testified that they were about through with their operations when Morgan, the defendant’s pumper, drove up. Abalos testified that Phillips had hooked up the bridle of the motor. Phillips testified that “we” rigged up the mechanism, the weights, rods and bridle. Phillips testified that without being asked, Morgan connected the gas line.

Abalos testified that Phillips told Morgan, “I am ready to start it up,” and to start the engine which operated the pumping unit so that he could determine whether the base and unit were level and steady. The one cylinder engine had to be started like an “old Model T Ford” — it had to be hand cranked. Phillips testified that these are sometimes hard to start, and that “it is a lot easier for him (Morgan) to start it than us.” While the motor operated on natural gas, gasoline was sometimes necessary to prime or start the engine. Morgan did crank and start the engine.

There is a valve to turn the gas supply on or off. Phillips testified it was his practice to ask the pumper to start the engine and that he would have tried to start the motor if Morgan had not. Phillips was asked, at another place in the record, what he would have done if Morgan had refused to start the motor. He said, “Well, I would have called the office and told them they wouldn’t start the engine. We would just have to leave her down.” Abalos testified that he asked Phillips and Morgan not to start the pump. They denied this, and Abalos worked with the pump moving.

As stated, the defendant’s pumper, Morgan, arrived when the Ruthco crew had rigged up the pumping mechanism and was almost, but not completely, finished. He voluntarily hooked up the gas line; and at Phillips’ request, started the motor, and the pump began to operate. Abalos testified that he and the others stood around 2 to 4 minutes “to see if it was going to set level,” —that this was a common practice. Phillips then told them, “Now let’s fill her in.” Thereupon Phillips, Abalos, and the others began to shovel the dirt back and to stomp it. They had thus worked for 3 or 4 minutes when the accident occurred.

Morgan meanwhile was washing his hands and was preparing to leave to attend to some other duties. He told Phillips that he had to go, that he would throw the motor out of gear, and that Ruthco’s man could throw it back in gear when they were finished. Morgan testified that Phillips said that no, he wanted it to run. This was confirmed by Phillips who testified that thereafter, he paid no more attention to Morgan. Phillips asked Morgan if he wanted to leave the unit pumping when we (the Ruthco crew) are through.

Phillips testified that “He (Morgan) said ‘yes.’ So we (Ruthco) left it pumping, or was going to leave it pumping; still pumping while we back filled.” Asked what Morgan was doing while they were working, Phillips testified that all Morgan had to do was “just stand and watch.” Phillips testified that it was his custom to leave the pump running until he was satisfied with the work. He further testified that at the time of the accident, the Ruthco job had not been finished, and that he, Phillips, had not relinquished control over the work to anyone.

The pump has a long overhead beam and a head at the end that sometimes is referred to as a horse’s head. Attached to the beam, and below it, is an arm which is attached to a crank and the revolving mechanism to which were attached two large semicircular iron counterweights. It takes the revolving parts, including the counterweights, 6 to 10 seconds to make a full revolution. Stated differently, it revolves 6 to 10 times per minute. It was “going about medium” at the time of the accident. Phillips thought it was going at about 8 turns per minute, which would make each turn a little over 7 seconds.

The plaintiff, Abalos, had replaced some dirt around the base and was using one foot to stomp it around the moving pump. As he worked, his hands were seen to be extended upward. At this time, the pumper, Morgan, was standing by observing. He was some 25 feet from the controls of the motor. He testified that he saw plaintiff’s left arm go over toward the running pump and thought to himself “that’s bad business” because the arm of Abalos was in a dangerous position, and Abalos did not seem to be aware that he was sticking his arm into the machinery.

Morgan said he was tempted to say something to him or go to turn off the machinery, but then took no immediate action. Asked if he thought to disengage the motor at that instant, he testified, “No sir, I had done asked the pusher (Phillips) about turning it off.” Asked why he didn’t yell at Abalos if he thought it was dangerous, he testified, “Well, I just didn’t,” and “I just didn’t have time to yell at him.” At about the time Morgan “started to holler” at the plaintiff, the revolving counterweight caught the plaintiff’s left arm and then his right arm. Morgan then ran for the brake and the clutch.

He disengaged the clutch to keep the unit from pumping, and “pulled the brake off.” This was not a dangerous thing for Morgan to do. The pumping unit had not made a complete turn (6 to 10 seconds) by the time it was stopped by Morgan. It had gone about a half a turn. There is a good deal of testimony about the revolving counterweights and the mechanism being completely open and obvious. Abalos had been in the oil fields over 9 years and had seen a great many similar pumping units. He testified that he realized the danger and that he had full knowledge that he had to be careful or he might get caught and be hurt.

He could not remember why he got so close to the moving weights. Our opinion, however, is not based on the “no duty” concept attendant to the encountering of an open and obvious danger. No dangerous conditions existed on defendant’s premises when Ruthco and its crew, including Abalos, came upon them to do their work. There is no testimony that an ordinary pumping oil well, such as the one in question, is an inherently dangerous instrumentality or would constitute a dangerous activity upon the premises. No mechanical defects were alleged, and there were no concealed dangers. As this court said in Coleman v.

Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970), any plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability. The threshold question, therefore, is whether Morgan was under a duty to Ruthco’s employee, Abalos. At Phillips’ request, and in order to enable Ruthco to complete its job, Morgan connected the gas line, cranked the motor, and put the motor “in gear” so the pump would operate.

He told Phillips he had to leave, and offered to throw the motor out of gear (leave the motor running, but stop the operation of the pump); but Phillips wanted the pump left operating. So this was done. Morgan was prepared to leave, with the work and the activity under Phillips’ and Ruthco’s control. Had Morgan left the site before the accident, his employer would not have been liable for the injury to Abalos. The entire activity was under the direction and control of Ruthco and its foreman, Phillips. There is some testimony from Abalos that he requested Phillips and Morgan not to start the engine.

But it is not contended that the starting of the motor by Morgan at Phillips’ request was itself the cause of the injury to Abalos. Abalos was completely familiar with such pumps, and all parties stood aside for a period of time before any further work was done to see that the base and pump were level. There was no request to turn the motor off. And Abalos knew the motor was running when he and the others shoveled dirt at the base of the pump and packed it with their feet.

The basis of our holding on this point is hot that Abalos assumed the risk, but that as a matter of law, the starting of the motor was not negligent conduct on the part of Morgan or the proximate cause of the injury to Abalos. Again, referring to our opinion in Coleman v. Hudson Gas Co., cited just above, the occupier is not an insurer, and as a plaintiff in any tort action, the plaintiff must prove the existence of a duty and a violation of that duty.

And where the activity is conducted by, and is under the control of, an independent contractor, and where the danger arises out of the activity staff, the responsibility or duty is that of the independent contractor, and not that of the owner of the premises. Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973); Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971); Hailey v. Missouri K & T Ry., 70 S.W.2d 249, Tex.Civ.App.1934, writ refused.

Granted that Morgan, who arrived after the Ruthco crew had reassembled the pumping unit, connected the gas line and, at the request of Phillips, started the engine and pump, he was thereafter an observer. He stood aside as he was expected to do, and Phillips was in control of the entire operation. And, when Morgan needed to leave, he offered to take the pump “out of gear.” but Phillips wanted the pump to continue to run. It therefore, as a matter of law, was not negligent conduct on Morgan’s part not to stop the motor before he left, or planned to leave.

Stated differently, Morgan, and his employer, the defendant oil company, were not under a duty to supervise the activity or Ruthco’s employees or to operate the motor while the activity of Ruthco was still in progress. This brings us to the contention of Abalos that Morgan’s employer should be liable because Morgan discovered the peril of Abalos and did not warn Abalos or run quickly enough to stop the pump. “Discovered peril” was adopted by this and other courts to remove the harshness of the absolute bar of contributory negligence.

A person or a company operating, and in control of a locomotive or an automobile, could not with impunity run into or over a person in peril, even though the person in peril was where he or she was because of his or her own contributory negligence. Contributory negligence was not, under the circumstances, a defense; and the operator was under a continuing duty to avoid striking the person up to the point of impact if he could do so with safety and in time to avoid the injury.

The Legislature of Texas has now abolished contributory negligence as an absolute bar and has substituted the doctrine of comparative negligence. It is therefore questioned whether the doctrine of discovered peril has survived, or should survive, the adoption of comparative negligence. Comment, 6 Texas Tech Law Review 131 (1974). It is not necessary to decide that question here.

Assuming that the doctrine of discovered peril is still a viable doctrine, its basis is that one in control of a vehicle, engine, or other instrumentality owes a duty not to direct, or use, it to injure a person in peril though the peril of the person is due to contributory negligence. On the same day in March of 1942, this Court handed down two decisions. Both involved questions of duty to persons in peril. They reached different results as to liability. It may therefore be safely assumed that the Court deliberately intended the results reached in the two cases. They were Buchanan v.

Rose, 138 Tex. 390, 159 S.W.2d 109; and Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112. In Turner, the plaintiff started his truck and negligently (without keeping a proper lookout for traffic) drove into the traveled portion of the highway. Though there was good visibility, and time and room to maneuver, the driver of the Texaco truck crashed into the plaintiff who had negligently gotten himself in a position of peril. This court there laid down the present rules for liability under the doctrine of discovered peril.

The operator of the moving vehicle, and his employer, were under a duty not to injure the plaintiff, assuming the finding of the facts set out in the opinion. In Buchanan, the truck driven by an employee of the defendant passed over a weak bridge. Its rear wheels crushed a part of the bridge. The resulting defect caused the bridge to be dangerous to traffic. A witness in a car behind the truck overtook the truck and asked the defendant’s driver if he were not going to put up a warning. The driver did not.

It was pointed out that defendant’s truck was not overloaded, was not being operated in a negligent manner, and that the weakness of the bridge existed before defendant’s truck passed over it. The bridge was not caused to become defective because of any negligence on the defendant’s part. The defendant’s truck driver was, however, an “actor” in the sense that he had something to do with the danger; — his truck had activated the cave-in, though not as a result of any negligence on his part. Six days later, the plaintiff’s car struck the defect in the bridge, and injury resulted.

On the same day it decided Turner and the discovered peril doctrine, this Court held that as a matter of law, the employer of the truck driver in Buchanan was not liable. He owed a moral duty, but not a legal duty, to the plaintiff. Chief Justice Alexander, in writing Buchanan, distinguished between people who create a dangerous condition and those who do not; and that, speaking in terms of duty: “. if a party negligently creates a dangerous situation it then becomes his duty to do something about it . . . .

On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others.” Buchanan has not been overruled; and while we are not necessarily prepared to extend it to cover all the situations used as illustrations by text writers who would require assistance or to protect persons in peril, we do regard Buchanan as applicable here. By the same token, we do not regard Turner as applicable here. As discussed in depth above, the defendant did not create the dangerous condition or activity.

The entire operation, including the operation of the pump, was at the time under the direction and control of an independent contractor, Ruthco. We, therefore, are of the view that the case has been correctly decided by the courts below; and the judgment of the court of civil appeals is, accordingly, affirmed. Concurring opinion by POPE, J. Dissenting opinion by REAVLEY, J., in which SAM D. JOHNSON, J., joins. . The evidence is that the revolving parts of the pump took about 8 seconds to make a full rotation, and that it would have taken Morgan 3 seconds (after realization) to move the 25 feet to the controls.

Phillips testified that if Morgan had not disengaged or stopped the revolving mechanism when he did, i. e., before a full revolution of the pump, the plaintiff, Abalos, would probably have been killed. He testified that there is no doubt in his mind that Abalos would have been dead. . The defense of volenti, a voluntary assumption of the risk in the ordinary negligence case, was abolished. Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975).

The court, however, was careful to state that “henceforth in the trial of all actions based on negligence, volenti . will no longer be treated as an issue.” 529 S.W.2d at 758. This case was tried and decided by the Court of Civil Appeals before Farley. Farley did not speak to “no duty.” Neither does this opinion deal with the “no duty” concept as it relates to “open and obvious” danger which have been related to the concept of assumption of the risk. We do not reach that question. See Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976). .

And again, we are not talking about negating “no duty” in the concept of the assumed risk cases such as Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). . Prosser, Law of Torts 340 et seq. (4th ed. 1971); 2 Harper & James, The Law of Torts 1046 et seq.