#### Garrett Frank VOGT v. Alton WHEAT and the Circle Drilling Company, Inc.

No. 3653.

Court of Appeal of Louisiana. Fourth Circuit.

Jan. 12, 1970.

On Rehearing March 9, 1970.

Writ Refused April 20, 1970.

*527John F. Fox, Jr., New Orleans, and John J. Maxwell, Metairie, for plaintiff-appellant-appellee.

Adams & Reese, Joel L. Borrello, New Orleans, Stockwell, St. Dizier, Sievert & Vincellio, Fred H. Sievert, Jr., Lake Charles, for defendants-appellees-appel lants.

Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for third-party defendants.

Before SAMUEL, REDMANN and DOMENGEAUX, JJ.

SAMUEL, Judge.

Plaintiff filed this suit in tort seeking damages for personal injuries sustained while he was working on a drilling rig as an employee of Gurtler, Hebert, Inc. Shell Oil Company, for whom the drilling was being done, had employed Gurtler to drive conductor pipe. Named defendants are Circle Drilling Company, Inc., owner and operator of the rig, and its tool pusher at the time of the accident, Alton Wheat. The petition alleges the injuries resulted from the negligence of Wheat. The two defendants answered, denying negligence on their part and alternatively pleading contributory negligence on the part of plaintiff. Wheat also pleaded assumption of the risk and, by amended answer, Circle alternatively further averred plaintiff was its borrowed servant, pro hac vice, and therefore workmen’s compensation was his exclusive remedy against Circle. Gurtler intervened to recover compensation benefits it had paid in the event judgment was rendered in plaintiff’s favor.

Prior to trial, but more than a year after the occurrence of the accident, Circle and Wheat filed third-party demands against Gurtler, certain named employees, managers, superintendents and/or department heads of Gurtler, and their insurer, alleging negligence on the part of the third-party defendants and seeking judgment against them for full indemnity or, alternatively, legal contribution as to any judgment which might be rendered on the main demand against the third-party plaintiffs. To these third-party demands Gurtler filed exceptions of no right or cause of action (based on the contention that as plaintiff’s employer it was exempt from tort liability) and the remaining third-party defendants filed exceptions of prescription.

*528After an extended trial the district judge concluded that: The borrowed servant doctrine was inapplicable and therefore Circle could be held liable in tort; Gurtler was protected by the workmen’s compensation law and for that reason could not be held liable in tort; the exceptions of prescription filed by the third-party defendants were well founded; Wheat and Circle had been guilty of negligence; and there had been contributory negligence on the part of plaintiff which barred a recovery by him. Accordingly, the trial court judgment dismissed plaintiff’s demand, the intervention of Gurtler and the third-party demands of Circle and Wheat.

Plaintiff has appealed therefrom, contending the trial court was in error in finding contributory negligence on his part. Circle and Wheat have answered that appeal, contending there was no negligence on the part of Wheat; in addition, those two defendants have taken a protective appeal from the judgment dismissing their third-party demands (See Vogt v. Wheat, La.App., 222 So.2d 579, in which we denied a motion to dismiss that appeal).

As found by the trial court and by us, the record reveals the following facts:

Circle’s rig, located in a swampy area near Good Hope, Louisiana, had been in the process of “rigging up” for about three days. The rig floor was approximately 30 to 35 feet square and 20 feet above the ground. At the front-center edge of the rig floor a “pipe slide” or “V-door ramp” extended at an angle toward the ground to a catwalk. The “V-door ramp” is used in pulling pipe from the catwalk into the derrick and thus in position to be driven into the hole. The catwalk was approximately 55 to 58 feet long, 5 feet wide and 4 feet high. A rack containing conductor pipe was parallel to the catwalk. The rack and the catwalk were in front of the rig. There was a rotary table in the center of the rig floor directly beneath the crown block atop the derrick. This rotary table was 8 to 10 feet from the V-door, i. e., the upper end of the pipe slide.

On the day of the accident a Gurtler hammer crew went to the rig site for the purpose of driving conductor pipe. It consisted of Lazio Gyomlai, hammer engineer in charge of the crew; plaintiff, hammer mechanic; and Tony Chandler, a welder. Following some argument between Gyomlai and Wheat as to the manner in which the same was to be accomplished, the heavy hammer was raised from the flatbed trailer truck which had brought it to the drilling site and place upright on the rotary table.

While the hammer was in that position Gyomlai and plaintiff removed the slings and attached smaller slings and a spreader bar. After this was done the hammer required servicing, which included fueling, greasing and attaching a bent welding rod to the hammer’s fuel pump to which a one-quarter inch and approximately 70' to 100' long “tag line” was to be attached. The purpose of the “tag line” is to control the operation of the hammer while pipe is being driven; it can be attached at any time before the hammer begins operating.

Under the supervision of Gyomlai plaintiff began servicing the hammer on the rig floor. He fueled and greased the hammer and placed a bent welding rod into a hole in the fuel pump lever located inside the leads or sheathing surrounding the hammer. While he was so engaged Chandler welded a drive shoe on the far end of the first joint of pipe to be driven. At that time the joint was on the pipe rack. The drive shoe is placed on the bottom of the first joint in order to prevent the pipe from folding or splitting while it is being hammered into the ground.

Plaintiff’s next duty was to attach one end of the tag line to the bent welding rod. In order to accomplish this it was necessary to reach above his head and place his hands and a portion of his arms inside the hammer’s metal sheathing. On this occasion Gyomlai thought the tag line had been secured before that act had been accom*529plished. He pulled the line from plaintiff, brought one end of it to the right front corner of the rig floor and dropped that end to the ground so that it could be used to raise Chandler’s welding leads to the floor. Gyomlai then walked to the back of the rig and down the stairs located there. When the tag line was pulled from him plaintiff left the hammer and went to the right front corner of the floor where he was joined by Chandler after the latter had tied the line to his welding leads. Together the two lifted the leads to the rig floor. Chandler then left the rig floor to get a drink of water while plaintiff was coiling the tag line.

In the meantime the Circle crew had commenced raising the first joint of conductor pipe to be driven. That joint, the one to which Chandler had welded the drive shoe, was longer than any such pipe previously handled by the Circle crew. It was being raised by the use of a cat line and an air hoist line. Both lines passed through sheaves in the top of the derrick, 133 feet above the level of the rig floor, and the end of each was secured to the joint of pipe being raised. Circle’s tool pusher, Wheat, was operating the cat line control located on the right rear of the rig floor. Sanders, another Circle employee, was operating the air hoist control located on the left front side of the rig floor. White, Circle’s driller, also was on the rig floor directing the pipe raising operation.

As the first joint of conductor pipe was being raised the drive shoe on its far end was caught on the edge of the catwalk and the pipe “hung up” with its hauling end approximately 4 feet above and 12' to 15' forward of the rig floor. It remained in that position for some 3 to 5 minutes while Circle roughnecks at the catwalk were attempting to disengage the pipe from the walk. The joint was thus suspended during the time plaintiff and Chandler were raising the welding leads. After the leads had been raised plaintiff completed coiling the tag line, walked from the right front corner of the rig toward the hammer, and began to attach the tag line to the bent welding rod in the upper part of the hammer. While so engaged, and while plaintiff’s back was turned to the pipe being raised, the roughnecks managed to disengage the drive shoe from the catwalk and the pipe swung towards the rig and the V-door ramp. It struck the hammer and plaintiff, severely injuring his left arm and hand.

White testified that, as plaintiff was walking to the hammer while the pipe being raised was snagged and hanging 12' to 15' out from the rig floor, he told plaintiff not to walk across because he would be killed if the pipe hit him. Sanders testified he heard the warning. Plaintiff denied he had heard the warning. The trial judge felt that whether or not White had warned plaintiff was not material to his conclusions regarding negligence on the part of plaintiff or Circle’s employees.

The record establishes that it is extremely dangerous to be in the path of the V-door ramp during a pipe lifting operation. Plaintiff admitted he was aware of that danger but testified he was unaware of the fact that a pipe lifting operation was in progress.

We find it expedient and proper to consider first the question of whether or not plaintiff was guilty of negligence which was a proximate cause of the accident. If, as found by the trial court, plaintiff was guilty of such negligence, he cannot recover and a determination of any of the other questions presented, including whether or not the original defendants were negligent, becomes unnecessary; the plaintiff in intervention and the third-party plaintiffs can recover, respectively, compensation benefits paid and indemnity or contribution only in the event of a judgment in favor of plaintiff on the main demand.

Generally, the established rule is that one must see dangers which are obvious and which can be appreciated by a reasonable and ordinarily prudent person; *530there can be no recovery for injury caused by a danger which is open and apparent. Coquille v. Expressway Bowling, Inc., La.App., 183 So.2d 347; Turner v. Aetna Casualty & Surety Company, La.App., 175 So.2d 304; Spinks v. General Fire & Casualty Company, La.App., 175 So.2d 339; Tete v. Newark Insurance Company, La.App., 170 So.2d 248; Denton v. Fireman’s Fund Insurance Company, La.App., 158 So.2d 438; Youngblood v. Newspaper Production Company, La.App., 158 So.2d 432; Birth v. City of New Orleans, La.App., 77 So.2d 233; Hamilton v. City of Monroe, La.App., 72 So.2d 576.

His counsel argue that plaintiff’s failure to observe the pipe-lifting operation does not call for an application of the rule for the reasons that he was inexperienced, had no reason to believe the operation would commence at the time that it did, and was distracted as a result of being intent on accomplishing his duties. We cannot agree.

The record does establish that plaintiff was without prior experience on a land-based drilling operation. He had been employed by Gurtler only a short time before the accident and his experience as a hammer mechanic was limited to three offshore jobs where pipe customarily was lifted by a crane. He testified there was a crane in the vicinity of the Circle rig and he did not know the pipe lifting operation had commenced because he was under the impression that lifting would be done by a crane following the marking of the first joint of pipe to be driven, a duty he was required to perform.

Whether or not the first joint of pipe had to be marked prior to the commencement of drilling operations is questionable; plaintiff’s immediate superior, Gyomlai, testified to the contrary. And while there was a crane in the vicinity, it was some distance from the rig itself and no efforts were ever made to move the crane into position for a pipe lifting operation. Insofar as “momentary forgetfulness” resulting from being intent on doing his work is concerned, in order to excuse such conduct which otherwise would constitute negligence, inattention to a known or easily discernable danger must be induced by some sudden and adequate disturbing cause. Veal v. Employers Liability Assurance Corporation, La.App., 108 So.2d 242; Crosby v. Brown Oil Tools, Inc., La.App., 92 So.2d 115. Here there was no such cause.

We agree with the trial court finding that plaintiff was so inattentive to his surroundings he failed to observe a danger which was obvious, imminent and visible. Although he knew it was extremely dangerous to be in the vicinity of the V-door ramp during a pipe lifting operation, he walked from a place of safety directly into the path of the V-door ramp. Each of the witnesses who testified factually concerning the accident stated he knew the pipe lifting operation was going on and, from whatever position he may have occupied, that he saw the joint of pipe suspended in the air over the front of the rig floor. While Chandler and the plaintiff were lifting the welding leads to the rig floor the former saw the pipe suspended in the air with its far end caught on the edge of the catwalk. As the two were on the right front edge of the rig floor and the catwalk and the suspended pipe were below and almost directly in front of them, it is difficult to understand how plaintiff, could have failed to see what Chandler saw. In addition, from any position on the rig floor, the pipe hanging out above the V-door and pointing toward the rotary table, the taut air hoist and cat lines attached to the raised end of the pipe, and the activity on the rig floor, including the operation of the cat line and air hoist controls, made it obvious that a pipe lifting operation was in progress. In failing to observe that operation, in walking from a place of safety into a place of obvious danger, and in remaining in that place of danger with his back turned to the pipe being lifted, plaintiff *531was guilty of negligence which bars a recovery by him.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

DOMENGEAUX, Judge

(dissenting).

Although I recognize the forcefulness of the majority opinion in holding the plaintiff, Vogt, guilty of contributory negligence, and do not quarrel with the general legal propositions advanced, I think plaintiff’s inexperience as an oilfield worker was such that he should not be held accountable for the accident and especially so since it is my opinion that the evidence does not disclose that the danger was one which would be easily discernible by one such as plaintiff.

It is evident from his reasons for judgment that the trial judge considered the plaintiff to be an oil field novice by stating: “By any standard Vogt was an inexperienced hammer mechanic with a limited knowledge of oil field operations * * * ” ln view of all the facts and circumstances of the case I must agree with the trial judge’s opinion on this point. Plaintiff was but 20 years of age and had only been exposed to oilfield operations for about one month before the accident. The first two weeks he was assigned to his employer’s yard under the supervision of Gyomlai, the hammer engineer, who together with other persons instructed him in the basic mechanics of repairing, maintaining, operating and servicing the diesel hammers which are used to drive conductor pipe. Plaintiff attended no safety schools and, insofar as is disclosed by the facts of this case, was never taught the multitudinous dangers always present in oilfield rigging and drilling operations, or the myriad safety precautions needed in these operations. These things can only be learned through extensive training programs and/or extensive experience, neither of which the plaintiff had the benefit of. Actually he participated in three off-shore operations, which in all, took about 10 days, and the job on which he was injured was the first land-rig job that he had ever worked on. The evidence showed that the major difference between an off-shore and a land-based pipe lifting operation is that on the off-shore job a crane is used to lift the lengths of pipe up to the rig floor whereas on a land-based job, the pipe is lifted by machinery from the rig floor itself, namely the air hoist and the cat line. It is to be remembered that when plaintiff arrived at the rig site with the hammer crew, the drilling contractor Circle had been carrying on the rigging operation for some three days. Hence the noise and general commotion which normally attend drilling operations were already rampant. Plaintiff knew that he had certain duties to perform in connection with rigging up the hammer, measuring and marking pipe on the pipe rack, etc., which he had not completed at the time of the accident. Although, evidently it was not necessary that plaintiff complete these duties prior to the lifting of the pipe, I am convinced that he had no way of knowing that it was not necessary.

Except for plaintiff, all of the crewmen on both the drilling crew and the hammer crew had many years of experience in their work and hence possessed that awareness peculiar to those seasoned by experience. Wheat, the Tool Pusher for Circle, testified that warnings are not given when the pipe raising begins, except if a new man is on the job. Plaintiff knew that one should not stand in the path of pipe while it is being hoisted but it appears to me that Vogt did not know nor had any reason to know, in view of all of the evidence, that pipe was being lifted up to the rig floor before, or at the time of the accident. Vogt and all witnesses testified that there was a crane at the job site at the time of the accident. Although it may have been obvious to one experienced in rigging operations that this crane was not to be used to hoist the pipe, in view of the fact that Vogt was never instructed as to the differences between off-shore and land-based methods of lifting pipe it is not unreasona*532ble to conclude that the plaintiff, because of his general lack of knowledge on the subject, and his total experience being limited to off-shore operations, was under the impression that the crane would be used to lift the pipe.

Oil rigging operations are extremely noisy and even though the driller White, who was not a member of plaintiff’s crew, testified that he warned plaintiff not to go toward the rotary table in the center of the rig, it is reasonable to conclude that plaintiff did not hear the warning. In that connection it is significant to note that subsequent to giving the warning, White himself traversed the path of the pipe before it became dislodged, and in so doing, did the same thing that he warned the plaintiff not to do.

Considering all the evidence, it is my impression that the plaintiff did not know and had no reason to believe that pipe was being lifted to the rig floor before, or at the time of the accident, in view of his inexperience and consequent lack of knowledge of the overall rigging operations. In order for plaintiff to be held contributorily negligent, the defendants must show that plaintiff not only had knowledge of the danger but also that he appreciated the danger under all the surrounding conditions and circumstances of the case. I do not believe that defendants have borne their burden of so showing.

I disagree with the conclusion of the majority herein and of the trial judge that plaintiff was so inattentive to his surroundings that he failed to observe a danger which was obvious, imminent and visible. In view of plaintiff’s inexperience, the danger involved was not of such a nature as to be obvious, imminent and visible to him.

It is therefore my opinion that plaintiff was not contributorily negligent and that this court should decide the other questions involved in this appeal.

For the above reasons, I respectfully dissent.

ON REHEARING

SAMUEL, Judge.

In this matter we granted a rehearing on application of the plaintiff-appellant. After hearing argument thereon, and after reconsideration of the entire matter, particularly with reference to the question of contributory negligence, we adhere to our original majority opinion and decree.

Accordingly, our original majority opinion and decree herein are reinstated as the final judgment of this Court.

Original decree reinstated.

DOMENGEAUX, Judge

(dissenting).

For my reasons originally set forth, I must again respectfully dissent.