Abalos v. Oil Development Co. of Texas

491 S.W.2d 482, 1973 Tex. App. LEXIS 2354

• Court: Court of Appeals of Texas
• Decided: February 20, 1973
• Docket: No. 8300
• Status: Published

Opinions

JOY, Justice.

This is an appeal from a summary judgment granted against Henry Abalos in favor of the defendant Oil Development Company of Texas. Reversed and remanded.

Abalos was employed by Ruthco, a company engaged in the business of manufacturing and installing portable cement bases for oil field pumping units. In the process of installation, a hole is excavated in the ground larger than the cement base. The base is then placed in the hole and the pumping unit attached to the base. A sufficient amount of the dirt removed is then returned to the space around the base in order to make level the base with the surrounding ground. Customarily, the pumping crew is then permitted to operate the pumping unit during the dirt backfilling operation. Curtis Morgan, the pumper employed by Oil Development Company of Texas, started the equipment and Abalos proceeded to shovel the dirt in the open space around the base of the unit. A part of the pumping unit on the base consisted of weights that traveled in a circular motion making from eight to ten revolutions per minute. While Abalos was packing the dirt around the base of the unit with his foot or feet, he raised one hand up in a balancing motion with his arm in close proximity to the revolving weights, resulting in Abalos’ injuries. Morgan, appellee’s employee, saw the arm in a dangerous position and realized that Abalos might be injured. Morgan also thought of stopping the motor but took no immediate action to do so, and when asked why he did not yell at Abalos, he said he “just didn’t know why.”

This being a summary judgment case, the burden is upon the movant to clearly demonstrate that no genuine issue of a material fact exists. We do not think that the movant has met that burden. Appel-lee’s employee admittedly had from 6 to 7½ seconds to warn Abalos of the danger or to stop the pumping unit to avoid the injury to Abalos. This raises a question of fact for determination as to whether or not appellee’s employee, in the light of these particular circumstances, had sufficient time to take action to prevent the injury to Abalos when he discovered him in the dangerous position.

Appellee argues very ably that as a matter of law no duty was owed by appellee to warn Abalos. However, we quote from the Supreme Court case of Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963) relied upon by appellee:

“. . . Moreover, the jury may be called upon to find whether he had knowledge of particular facts from which he would be charged with knowledge or appreciation of the danger.”

Although the question of duty is one of law, in this case the movant has not established as a matter of law that no duty existed. The fact issue exists as to the essential element of actual control of the operation of the pumping unit, this issue having a direct bearing upon the ultimate issue of duty. From a careful review of the summary judgment evidence, we cannot hold as a matter of law that no duty existed.

The judgment is reversed and the cause remanded for trial.