HUTCHESON, Circuit Judge.
Plaintiff, alleging1 himself to be an employee of one Bruce Wimberley, an independent contractor, sued as “an invitee of defendant” for damages for personal injuries sustained while unloading, from a box car, sheets of steel belonging to defendant.
The claim was that defendant was liable because defendant’s contract with Wimberley called for the performance of an inherently dangerous work, unloading, in the night time, wtihout adequate lighting, a box car full of heavy steel sheets which, to defendant’s knowledge but not to plaintiff’s, were so stacked as to be liable to fall, and defendant had failed to warn plaintiff of the grave dangers attendant on doing the work.
The defenses were a general denial that defendant had been in anywise negligent and special denials that the work was inherently dangerous and that plaintiff had not been advised of the dangers attendant upon doing it.
There was, too, an affirmative plea that, as alleged by plaintiff, plaintiff was an em-' ployee not of defendant but of Wimberley, and independent contractor, and if there was any negligence in not furnishing plaintiff a safe place to work, it was the negligence of his employer and not of defendant.
There was a further plea that plaintiff knew of and assumed the risks of doing the work, and if there was any negligence in connection with handling the steel sheets it was the negligence of plaintiff.
The evidence in some respects not material2 to the issues was in conflict. In regard, however, to matters material to the decision of the case, whether the work was inherently dangerous, whether plaintiff knew of the conditions attending it, and whether defendant had in any respect violated its duty to plaintiff as an invitee, the evidence 3 presented no conflict whatever.
It is true that Kelley testified that no one had warned him that he was in danger of being injured. It is true, too, that he testified the steel sheets were leaning [813]*813against one wall, and that “As I had been told it had to be moved, I presumed it was safe to get in and take the steel out”. But this testimony amounts to no more than a statement that, although he saw that a heavy piece of steel was kept from falling only because it leaned against the south wall, he didn't know that if righted up and allowed to lean toward the north wall without support, it would fall that way. His own evidence4 shows beyond dispute that working in daylight for more than six hours in the car he saw that the sheets were so lying that if they had not been supported against the south wall of the car they would have fallen. He, therefore,
[814]*814saw and knew everything that could have been told to him, that if the sheets were straightened up and swung over toward the north wall of the car, their weight, configuration, and size were such that if unsupported they would be bound to fall. There was nothing then in the work he was doing and the situation under which he was doing it which was not as fully known to him as to Head, nothing in the work that was inherently dangerous if it was done with reasonable care for the safety of the worker.
Defendant’s motion for an instructed verdict made at the conclusion of all the evidence was denied, and over objections of defendant that the evidence did not raise them, the cause was submitted to the jury on all the issues tendered in plaintiff's petition.5
[815]*815Appealing from the verdict and judgment for plaintiff, defendant is here insisting that the evidence did not make out a case for the jury, and if it did, there were reversible errors in the charge.
We agree with appellant that the evidence did not present an issue of discovered peril or of inherently dangerous work, and that it was reversible error to charge on them.
We agree, too, that under the undisputed facts, the duty was on plaintiff’s employer and not on the defendant to warn plaintiff of the dangers of working with steel at night and to furnish him with adequate lighting and that if there was any negligence in the discharge of this duty, it was the negligence not of defendant but of Wimberley, plaintiff’s employer, and it was error for the court to charge these issues to the jury.
It will not be necessary, however, for us to set out or discuss the complained of portions of the charge for we agree with appellant that, on the undisputed evidence, no case of liability as against the owner was made out, and that, as requested by it, a verdict in its favor should have been instructed.
It will be sufficient then for us to briefly state the principles of law controlling here and point to the facts which, as matter of law, demanded a verdict for defendant.
As stated in 23 Tex.Jur., Independent Contractor, Sec. 15, Liability to Third Persons, Basic Rule: “The basic rule of this subject is that an employer is not responsible for the acts or omissions of an independent contractor, his sub-contractors or servants, committed in the prosecution of work that is not in itself unlawful or attended with danger to others. The employer having no duties, he is not liable because the contractor may have violated the obligations resting upon him. The doctrine of respondeat superior has no application. * * * Accordingly, an instructed verdict in behalf of the employer is properly ordered where the undisputed facts call for an application of this general rule.”
As fully set out in Sections 16 to 23, inch, there are, of course, exceptions to this rule. However, under the settled law in Texas and generally elsewhere, “The burden of bringing his case within an exception to the general rule exempting an owner or employer from liability for the contractor’s negligence rests upon the plaintiff, 23 Tex.Jur., Sec. 16, p. 562.
The plaintiff in this case recognized this burden and undertook to# discharge it by claiming: (1) that within Sec. 16, the owner “interfered with the contractor” by directing him to work at night; (2) that he breached the duty laid down in Sec. 21 to plaintiff as an invitee; and (3) that, as set out in Sec. 22, “the work contracted for “was unusually dangerous in itself as a result of circumstances brought about by the owner or employer in the first instance, and the injury” was “the proximate result of such conditions”. The difficulty with plaintiff’s case arises out of the fact that the evidence does not support his claims that he brought his case within any of these exceptions.
As to the first exception, there is no evidence whatever that Head, who for defendant employed Wimberley, plaintiff’s employer, in any manner interfered with the contractor in the discharge of his work. The fact that he told Wimberley that the steel must be gotten out that night was not an interference • with the contractor in the doing of the contracted work. It was merely the expression of a desire which was neither unlawful nor unreasonable. It imposed no duty whatever on the owner to provide lighting or other means to do the work safely. This was the duty of the contractor, the failure to perform which was the negligence of the contractor, the very thing that an owner is not liable to the contractor’s servants for.
Neither is plaintiff any better situated on the breach of duty to plaintiff as invitee to exercise ordinary care to furnish him a reasonably safe place to work.
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HUTCHESON, Circuit Judge.
Plaintiff, alleging1 himself to be an employee of one Bruce Wimberley, an independent contractor, sued as “an invitee of defendant” for damages for personal injuries sustained while unloading, from a box car, sheets of steel belonging to defendant.
The claim was that defendant was liable because defendant’s contract with Wimberley called for the performance of an inherently dangerous work, unloading, in the night time, wtihout adequate lighting, a box car full of heavy steel sheets which, to defendant’s knowledge but not to plaintiff’s, were so stacked as to be liable to fall, and defendant had failed to warn plaintiff of the grave dangers attendant on doing the work.
The defenses were a general denial that defendant had been in anywise negligent and special denials that the work was inherently dangerous and that plaintiff had not been advised of the dangers attendant upon doing it.
There was, too, an affirmative plea that, as alleged by plaintiff, plaintiff was an em-' ployee not of defendant but of Wimberley, and independent contractor, and if there was any negligence in not furnishing plaintiff a safe place to work, it was the negligence of his employer and not of defendant.
There was a further plea that plaintiff knew of and assumed the risks of doing the work, and if there was any negligence in connection with handling the steel sheets it was the negligence of plaintiff.
The evidence in some respects not material2 to the issues was in conflict. In regard, however, to matters material to the decision of the case, whether the work was inherently dangerous, whether plaintiff knew of the conditions attending it, and whether defendant had in any respect violated its duty to plaintiff as an invitee, the evidence 3 presented no conflict whatever.
It is true that Kelley testified that no one had warned him that he was in danger of being injured. It is true, too, that he testified the steel sheets were leaning [813]*813against one wall, and that “As I had been told it had to be moved, I presumed it was safe to get in and take the steel out”. But this testimony amounts to no more than a statement that, although he saw that a heavy piece of steel was kept from falling only because it leaned against the south wall, he didn't know that if righted up and allowed to lean toward the north wall without support, it would fall that way. His own evidence4 shows beyond dispute that working in daylight for more than six hours in the car he saw that the sheets were so lying that if they had not been supported against the south wall of the car they would have fallen. He, therefore,
[814]*814saw and knew everything that could have been told to him, that if the sheets were straightened up and swung over toward the north wall of the car, their weight, configuration, and size were such that if unsupported they would be bound to fall. There was nothing then in the work he was doing and the situation under which he was doing it which was not as fully known to him as to Head, nothing in the work that was inherently dangerous if it was done with reasonable care for the safety of the worker.
Defendant’s motion for an instructed verdict made at the conclusion of all the evidence was denied, and over objections of defendant that the evidence did not raise them, the cause was submitted to the jury on all the issues tendered in plaintiff's petition.5
[815]*815Appealing from the verdict and judgment for plaintiff, defendant is here insisting that the evidence did not make out a case for the jury, and if it did, there were reversible errors in the charge.
We agree with appellant that the evidence did not present an issue of discovered peril or of inherently dangerous work, and that it was reversible error to charge on them.
We agree, too, that under the undisputed facts, the duty was on plaintiff’s employer and not on the defendant to warn plaintiff of the dangers of working with steel at night and to furnish him with adequate lighting and that if there was any negligence in the discharge of this duty, it was the negligence not of defendant but of Wimberley, plaintiff’s employer, and it was error for the court to charge these issues to the jury.
It will not be necessary, however, for us to set out or discuss the complained of portions of the charge for we agree with appellant that, on the undisputed evidence, no case of liability as against the owner was made out, and that, as requested by it, a verdict in its favor should have been instructed.
It will be sufficient then for us to briefly state the principles of law controlling here and point to the facts which, as matter of law, demanded a verdict for defendant.
As stated in 23 Tex.Jur., Independent Contractor, Sec. 15, Liability to Third Persons, Basic Rule: “The basic rule of this subject is that an employer is not responsible for the acts or omissions of an independent contractor, his sub-contractors or servants, committed in the prosecution of work that is not in itself unlawful or attended with danger to others. The employer having no duties, he is not liable because the contractor may have violated the obligations resting upon him. The doctrine of respondeat superior has no application. * * * Accordingly, an instructed verdict in behalf of the employer is properly ordered where the undisputed facts call for an application of this general rule.”
As fully set out in Sections 16 to 23, inch, there are, of course, exceptions to this rule. However, under the settled law in Texas and generally elsewhere, “The burden of bringing his case within an exception to the general rule exempting an owner or employer from liability for the contractor’s negligence rests upon the plaintiff, 23 Tex.Jur., Sec. 16, p. 562.
The plaintiff in this case recognized this burden and undertook to# discharge it by claiming: (1) that within Sec. 16, the owner “interfered with the contractor” by directing him to work at night; (2) that he breached the duty laid down in Sec. 21 to plaintiff as an invitee; and (3) that, as set out in Sec. 22, “the work contracted for “was unusually dangerous in itself as a result of circumstances brought about by the owner or employer in the first instance, and the injury” was “the proximate result of such conditions”. The difficulty with plaintiff’s case arises out of the fact that the evidence does not support his claims that he brought his case within any of these exceptions.
As to the first exception, there is no evidence whatever that Head, who for defendant employed Wimberley, plaintiff’s employer, in any manner interfered with the contractor in the discharge of his work. The fact that he told Wimberley that the steel must be gotten out that night was not an interference • with the contractor in the doing of the contracted work. It was merely the expression of a desire which was neither unlawful nor unreasonable. It imposed no duty whatever on the owner to provide lighting or other means to do the work safely. This was the duty of the contractor, the failure to perform which was the negligence of the contractor, the very thing that an owner is not liable to the contractor’s servants for.
Neither is plaintiff any better situated on the breach of duty to plaintiff as invitee to exercise ordinary care to furnish him a reasonably safe place to work. The governing rule here is thus set out in 23 Tex.Jur., Sec. 21, p. 568: “The employer is under a duty to guard the servants of the contractor against any dangerous condition known to him but not to the workmen. But as against open, obvious and apparent dangers, known to the workmen, [816]*816the employer or owner of the premises is under no obligation of protection. Nor may he be held responsible for an injury caused by transitory conditions incident to the progress of the work * *
As shown-by the evidence of Kelley, note 4, supra, the injury he sustained was “caused by transitory conditions incident to the progress of the work”. These conditions were created by him in moving the other plates and in pulling the particular piece free from its nail. The dangers arising out of these conditions, that a heavy piece of steel might in handling be caused to come off balance and fall if not supported, were open and obvious. They had been seen by, known to, and avoided by him for the eight hours that he had been working, some six of them in full daylight.
Nor can plaintiff avail himself of the exception dealt with in Sec. 22, Work Inherently Dangerous. In the first place, as pointed out in Humble Oil & Refining Co. v. Bell, Tex.Civ.App., 180 S.W.2d 970, at page 975, quoting 14 R. C. L. p. 95: “The rule imposing liability on the employer is for the protection of third persons, not for the protection of the contractor’s servants, and the latter cannot hold the employer responsible * * * solely upon the theory that the work * * * was intrinsically dangerous.”
But in the second place, and more importantly, as pointed out in Section 22, and the cases cited by it, the “intrinsically dangerous” exception does not apply to dangers from obvious- risks connected with ordinary tasks, such as construction, loading, and unloading, especially where, as here, special skill was not required to avoid injury but only the exercise of ordinary care.6 Cases where it typically applies are cases of “unusual perils” such as those in the cases cited and relied on by appellee, dangerous gas and oil tanks,7 dangerous electric wires,8 maintained and operated by the owner, and cases like Sun Oil Co. v. Kneten, 5 Cir., 164 F.2d 806, where work of the owner is being carried on concurrently with the work of the independent contractor, and the negligence of the owner, either operating alone or concurrently with that of the contractor, causes the injury.
Appellee, supporting his claims by citing cases particularly Amacker v Skelly, 5 Cir., 132 F.2d 431, 433, an opinion by the writer, cites them as though they held that the duty of an owner of premises to an invitee, the servant of an independent contractor, is the same duty as that of a master to a servant. In so citing them he completely misconstrues them. In the Amacker case, which seems to be the most strongly relied on, the appeal was from an instructed verdict. The court stating: “On this record, the defendant had supervision and control over deceased and was under a duty to exercise due care to see that the dangerous work it put him to doing was done by reasonably safe and prudent means and methods”, reversed the cause for a new trial on this and other issues presented. This is pointed out in the opinion on the last appeal of the case, Gipson v. Skelly Oil Co., 5 Cir., 152 F.2d 588.
In Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970, 976, the Texas Court of Civil Appeals correctly pointing out that in Amacker’s case and in Crow’s note 7, supra, the employer assumed control of the work, concludes: “In each case the relationship of the contractee to the plaintiff therein was analogous to that of master and servant”.
Here the undisputed evidence establishes, indeed it is conceded, that the plaintiff’s relationship to the owner was merely that of an invitee. Here the fundamental principle which underlies the duty of an owner to an employee of an independent contractor is wanting. Here there was no hidden or concealed danger, no [817]*817source of danger from operations or conditions under the owner’s control. The only danger to plaintiff arose out of the way and manner in which he did the work, a danger which he created and which was completely obvious to him.
He testified that he' went into the car in broad daylight at 1:30 with both doors open. He testified that he saw that the sheets were lying free and were leaning against the south wall of the car. He testified, too, that he worked in the car for many hours afterwards, moving as many as 23 of the sheets, still in broad daylight. He, therefore, saw and knew as well as, in fact far more clearly than, anybody could tell him, that if in pulling the sheets out they were pulled upright and swung over toward the north wall of the car so that they would lean 'that way, their weight, configuration, and size were such that if overbalanced and unsupported, they would be bound to fall. There was nothing in the work and the situation which was not as fully known to him to defendant, nothing in it that was dangerous if the work was done with ordinary care for the safety of the worker. There was no danger requiring special skill to avoid, in fact no danger at all except that arising from the changing positions of the steel sheets as plaintiff pulled them out. The case is controlled by Kuptz v. Sollitt, 5 Cir., 88 F.2d 532, and the rules established by the Texas cases.
The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.