REYNOLDS, Justice.
The trial court instructed a verdict against plaintiff in his action for personal injury damages founded on the doctrine of discovered peril. The instructed verdict was proper because there is no evidence to show the existence and violation of any duty owed plaintiff by the defendant. Affirmed.
Defendant Oil Development Company of Texas, the operator of an oil lease in Yoa-kum County, employed Ruthco Company, an independent contractor, to move and reset some pumping units on the lease. The crew assigned to do the work was composed of foreman Jesse Phillips and three other employees, one of whom was plaintiff Henry Abalos, who had been employed in this type of work for nine and one-half years by Ruthco. The operation was under the entire control of Ruthco’s crew and no employee of defendant had any control, direction or supervision of the work.
Pursuant to the work order for one well, the Ruthco crew removed and set aside the pumping unit and the base in the ground upon which it rested, enlarged the hole to [606]*606accommodate a larger base, and installed from another location the larger concrete base to which was attached a larger pumping unit. The dirt that had been removed from the hole was used to fill the excavated area around the base. The base was required to be level for the proper operation of the pumping unit and, in the course of the installation, the pumping unit would be run to ascertain that the base was level and not rocking, particularly where, as in this instance, the base was uneven on the bottom. If the lease operator’s pumper is present, Phillips requests that he start the motor because he is more familiar with it; otherwise, Phillips starts the motor.
When the dirt backfilling was almost complete, defendant’s pumper, Curtis Ray Morgan, who had the responsibility for the operation of all the pumps on the lease, arrived at the well. Y/ithout a request to do so, Morgan connected the gas line to the motor. Phillips requested that Morgan start the motor. If Morgan had refused to do so, Phillips would have started, or tried to start, the motor. If Morgan had refused because the crew would be working close to the unit, Phillips would have called Ms office and “leave her down.”
When Phillips requested Morgan to start the motor, Abalos said, so he testified, “Do not crank that motor up, because we could get hurt real easy.” Both Phillips and Morgan denied that they heard the protest voiced by Abalos. Moreover, Phillips said that Abalos raised no objection to working around the pump while it was in operation and that his crew, including Abalos, had done so many times before. Morgan cranked the motor while Abalos watched. After the Ruthco crew and Morgan had observed the motor run for four or five minutes, Phillips, seeing that the base looked all right, gave the order to complete the backfill. According to Phillips, there was nothing to prevent anyone from seeing the pump going up and down, the counterweight revolving and the moving parts of the pump. He knew no reason for a man in the process of filling the hole to get close enough to the moving parts to get caught.
Abalos, who had observed motors run to see how level the base was going to set as many as 1,000 times in his work, joined the rest of the crew in the backfilling work. He readily admitted that he knew it was a dangerous situation because the unit was running and if he got too close to it, he might get caught by it. Nevertheless, he continued to work with full knowledge of the dangerous situation, knowing that he had to be careful or he was going to get hurt.
Morgan said he stated to Phillips, “I will throw it out of gear if you will throw it back in gear. I have got to go;” and that the response was, “No, he wanted it to run where they could level the dirt.” Phillips’ version was that “He said he had to leave, and I told him, asked if he wanted to leave the unit pumping when we got through. He said, ‘yes’. So we left it pumping; or was going to leave it pumping; still pumping while we backfilled.” Abalos did not hear the conversation; “the motor was making a noise” as he was shoveling dirt next to the base.
Morgan, standing near the head of the pumping unit some twenty-five feet from the motor, began cleaning his hands. He saw Abalos, who was working on the opposite side of the unit, tamping dirt around the base with his right foot. His right hand was holding a shovel and his raised left hand “went over toward the unit” Morgan thought “that’s bad business”, that the arm was in a dangerous position, and that Aba-los was not aware that he was sticking Ms arm into the moving machinery. Morgan was tempted to say something to Abalos, and his further thought was to turn off the machinery, but he took no action. When asked why he did not yell at Abalos, Morgan replied, “Well, I just didn’t”, adding later that he “didn’t have time.” When the revolving counterweight, which made about eight or ten revolutions a minute, had made one revolution and about the time Morgan “started to holler at him, it come (sic) over [607]*607again, and he throwed (sic) his hand over in there again.” Morgan, in the courtroom— illustrated time lapse of three seconds, ran to the motor. When he stopped the motor, the counterweight had gone about one-half to three-fourths of a complete revolution.
Abalos remembered that he was not packing dirt around the base immediately prior to his injury, but he did not remember much about the accident itself, stating, “I don’t know how I got caught.” He said that when his arm was caught in the moving machinery, the counterweight made one revolution and his other arm was caught. When asked how he got close enough to get caught, he replied, “I don’t remember. I don’t know how I got so close.”
Phillips said that, at the time of the accident, the job had not been finished. The job is finished when Phillips is satisfied that the unit is pumping right and everything is all right with it, and the crew leaves the location. If the operator’s pumper tells Phillips he wants the pump shut down, the motor is stopped; otherwise, the custom is to leave it running.
After all of the evidence was presented before the jury, the trial court granted defendant’s motion for instructed verdict without specifying which one or more of the nine grounds urged in the motion the court found valid. Among the grounds urged was the one that defendant owed no duty to Abalos. If the instructed verdict was proper, it is because the evidence, and any proper inferences flowing therefrom, viewed in the light most favorable to Abalos without regard to the adverse testimony, fails to factually raise the issue of a duty arising under the doctrine of discovered peril. See Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361.
This is the second time this cause has been before this court. A former appeal was taken from a summary judgment granted in favor of defendant. The opinion of the majority of the court reported in 491 S.W.2d 482, with this writer dissenting at p. 484, held that the summary judgment evidence failed to demonstrate the absence of a genuine issue of material fact as to the control of the pumping unit, which had a direct bearing on whether defendant owed a duty to Abalos. The application for writ of error was “Refused, No Reversible Error.”
Abalos invokes the doctrine of the law of the case.
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REYNOLDS, Justice.
The trial court instructed a verdict against plaintiff in his action for personal injury damages founded on the doctrine of discovered peril. The instructed verdict was proper because there is no evidence to show the existence and violation of any duty owed plaintiff by the defendant. Affirmed.
Defendant Oil Development Company of Texas, the operator of an oil lease in Yoa-kum County, employed Ruthco Company, an independent contractor, to move and reset some pumping units on the lease. The crew assigned to do the work was composed of foreman Jesse Phillips and three other employees, one of whom was plaintiff Henry Abalos, who had been employed in this type of work for nine and one-half years by Ruthco. The operation was under the entire control of Ruthco’s crew and no employee of defendant had any control, direction or supervision of the work.
Pursuant to the work order for one well, the Ruthco crew removed and set aside the pumping unit and the base in the ground upon which it rested, enlarged the hole to [606]*606accommodate a larger base, and installed from another location the larger concrete base to which was attached a larger pumping unit. The dirt that had been removed from the hole was used to fill the excavated area around the base. The base was required to be level for the proper operation of the pumping unit and, in the course of the installation, the pumping unit would be run to ascertain that the base was level and not rocking, particularly where, as in this instance, the base was uneven on the bottom. If the lease operator’s pumper is present, Phillips requests that he start the motor because he is more familiar with it; otherwise, Phillips starts the motor.
When the dirt backfilling was almost complete, defendant’s pumper, Curtis Ray Morgan, who had the responsibility for the operation of all the pumps on the lease, arrived at the well. Y/ithout a request to do so, Morgan connected the gas line to the motor. Phillips requested that Morgan start the motor. If Morgan had refused to do so, Phillips would have started, or tried to start, the motor. If Morgan had refused because the crew would be working close to the unit, Phillips would have called Ms office and “leave her down.”
When Phillips requested Morgan to start the motor, Abalos said, so he testified, “Do not crank that motor up, because we could get hurt real easy.” Both Phillips and Morgan denied that they heard the protest voiced by Abalos. Moreover, Phillips said that Abalos raised no objection to working around the pump while it was in operation and that his crew, including Abalos, had done so many times before. Morgan cranked the motor while Abalos watched. After the Ruthco crew and Morgan had observed the motor run for four or five minutes, Phillips, seeing that the base looked all right, gave the order to complete the backfill. According to Phillips, there was nothing to prevent anyone from seeing the pump going up and down, the counterweight revolving and the moving parts of the pump. He knew no reason for a man in the process of filling the hole to get close enough to the moving parts to get caught.
Abalos, who had observed motors run to see how level the base was going to set as many as 1,000 times in his work, joined the rest of the crew in the backfilling work. He readily admitted that he knew it was a dangerous situation because the unit was running and if he got too close to it, he might get caught by it. Nevertheless, he continued to work with full knowledge of the dangerous situation, knowing that he had to be careful or he was going to get hurt.
Morgan said he stated to Phillips, “I will throw it out of gear if you will throw it back in gear. I have got to go;” and that the response was, “No, he wanted it to run where they could level the dirt.” Phillips’ version was that “He said he had to leave, and I told him, asked if he wanted to leave the unit pumping when we got through. He said, ‘yes’. So we left it pumping; or was going to leave it pumping; still pumping while we backfilled.” Abalos did not hear the conversation; “the motor was making a noise” as he was shoveling dirt next to the base.
Morgan, standing near the head of the pumping unit some twenty-five feet from the motor, began cleaning his hands. He saw Abalos, who was working on the opposite side of the unit, tamping dirt around the base with his right foot. His right hand was holding a shovel and his raised left hand “went over toward the unit” Morgan thought “that’s bad business”, that the arm was in a dangerous position, and that Aba-los was not aware that he was sticking Ms arm into the moving machinery. Morgan was tempted to say something to Abalos, and his further thought was to turn off the machinery, but he took no action. When asked why he did not yell at Abalos, Morgan replied, “Well, I just didn’t”, adding later that he “didn’t have time.” When the revolving counterweight, which made about eight or ten revolutions a minute, had made one revolution and about the time Morgan “started to holler at him, it come (sic) over [607]*607again, and he throwed (sic) his hand over in there again.” Morgan, in the courtroom— illustrated time lapse of three seconds, ran to the motor. When he stopped the motor, the counterweight had gone about one-half to three-fourths of a complete revolution.
Abalos remembered that he was not packing dirt around the base immediately prior to his injury, but he did not remember much about the accident itself, stating, “I don’t know how I got caught.” He said that when his arm was caught in the moving machinery, the counterweight made one revolution and his other arm was caught. When asked how he got close enough to get caught, he replied, “I don’t remember. I don’t know how I got so close.”
Phillips said that, at the time of the accident, the job had not been finished. The job is finished when Phillips is satisfied that the unit is pumping right and everything is all right with it, and the crew leaves the location. If the operator’s pumper tells Phillips he wants the pump shut down, the motor is stopped; otherwise, the custom is to leave it running.
After all of the evidence was presented before the jury, the trial court granted defendant’s motion for instructed verdict without specifying which one or more of the nine grounds urged in the motion the court found valid. Among the grounds urged was the one that defendant owed no duty to Abalos. If the instructed verdict was proper, it is because the evidence, and any proper inferences flowing therefrom, viewed in the light most favorable to Abalos without regard to the adverse testimony, fails to factually raise the issue of a duty arising under the doctrine of discovered peril. See Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361.
This is the second time this cause has been before this court. A former appeal was taken from a summary judgment granted in favor of defendant. The opinion of the majority of the court reported in 491 S.W.2d 482, with this writer dissenting at p. 484, held that the summary judgment evidence failed to demonstrate the absence of a genuine issue of material fact as to the control of the pumping unit, which had a direct bearing on whether defendant owed a duty to Abalos. The application for writ of error was “Refused, No Reversible Error.”
Abalos invokes the doctrine of the law of the case. He seeks the application of the general principle that sihce the facts developed in both hearings are the same or nearly so, the prior appeal settled as a matter of law that a fact issue exists as to whether or not defendant owed to Abalos a duty to use ordinary care to prevent the injury when Morgan discovered Abalos in his perilous position. See Clem v. Fulghum, 37 S.W.2d 201 (Tex.Civ.App.—Dallas 1931), affirmed 58 S.W.2d 15 (Tex.Com.App.1933, jdgmt. adopted).
To establish tort liability, Abalos had to show the existence of a duty owed to him by defendant and a violation of that duty. Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970). Consequently, the defendant did not, strictly speaking, have the burden to establish that it owed no duty to Abalos. Greenhill, Assumed Risk, 20 Sw.L.J. 1, 2 (1986). Nevertheless, to prevail in the prior summary judgment proceeding, the defendant oil company had the burden to present summary judgment proof that, as a matter of law, it owed no duty to Abalos to do anything more than Morgan did. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 454 (Tex.1972). The prior appeal determined that defendant failed to meet its burden of proof. However, to reach the jury in the present trial on the merits, Abalos had the burden to show the existence of a duty owed to Mm by defendant and a violation of that duty. Coleman v. Hudson Gas and Oil Corporation, supra.. The fact that defendant previously failed to summarily negative the existence of a duty as a matter of [608]*608law is fundamentally different from the question of whether Abalos adduced proof of the existence of that duty as a part of Ms case at the present trial on the merits, and defendant’s failure in the first instance does not operate to establish that Abalos successfully discharged his burden. See Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970). Thus, the first appeal did not establish the law of the case with respect to the question of the existence of a duty.
The defendant, the occupier of the premises, had no duty to protect Abalos, an invitee, from or to warn him of the dangerous condition or activity of working around the pumping unit while it operated, because Abalos actually knew the open and obvious danger, Halepeska, v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.1968), and he previously had exposed himself to this danger many times. See Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964). Nevertheless, the defendant had a duty to use ordinary care to prevent Abalos’s injury if Morgan was in control of the pumping unit and if the elements of discovered peril enumerated in Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112 (1942), are present in this ease. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 262 S.W.2d 561 (1952). The burden, of course, was on Abalos to raise the issue, as a part of his case, that Morgan was in control of the pumping unit. See 2 Restatement, Torts 2d, § 314, comment d. If not, Morgan’s status would be that of a bystander and, irrespective of any realization of danger by or any moral duty on the part of Morgan, the defendant would owe no legal duty to do more than Morgan did. Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942); 2 Restatement, Torts 2d, § 314.
The undisputed evidence is that while Morgan had the responsibility for the normal operation of the pumps on defendant’s lease, at all times before, during and after Abalos received his injury, Ruthco had complete control of its operation, which included the running of the pumping unit to insure that the work was properly performed. Morgan had no responsibility for or to assist in Ruthco’s work, and had he not been present when the work reached the stage where the pumping unit was required to be operated, Phillips would have started the motor. At the time Abalos suffered his injury, the work had not been finished and Ruthco had not relinquished its control over the operation. It follows that Abalos failed to present any evidence that Morgan had control of the pumping unit. Thus, Abalos failed to show that defendant owed him a duty to do more than Morgan did, and the instructed verdict was correctly granted.
The judgment of the trial court is affirmed.