Under the evidence in this case, the jury was authorized in finding that the defendant, in the exercise of ordinary care, should have foreseen the probable escape of gas from the well in such volume and of such poisonous nature as might be dangerous to the life of its employes engaged in drilling the same; that there was an appliance known as a jet, which if attached to the well, would have conducted poisonous gases therefrom and rendered the same a safe place to work; and that without this jet being upon the well it was not safe. 1 am therefore of the opinion the evidence supports the jury's finding that appellant was guilty of negligence in failing to have the well equipped with such jet. The duty of making the place safe was nondelegable, and the failure of Hessig to place the jet upon the well was the negligence of the master, since in the performance of nondelegable duties a fellow servant is in that respect regarded as the representative of the master.
The rule referred to in the majority opinion is believed to be inapplicable which relieves the master from the duty of exercising ordinary care to provide a reasonably safe place to work in cases in which the very work in which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards to increase or diminution of safety, and that the hazards thus arising as the work progresses are regarded as ordinary risks incident to the employment, and are assumed by the servant. The authorities which recognize this rule chiefly refer to construction, mining, and excavation work, and the rationale of the rule is that, under such circumstances and in the very nature of things, the master in advance cannot provide for the safety of his servants, and that provision for such safety cannot be made except is the work progresses and when the danger arises. The text-writers and authorities treat this as an exception to the general rule which imposes upon the master the duty of providing a safe place to work, but as a matter of fact, when analyzed, it is not an *Page 1040 exception, but recovery is denied on the broad ground that there is no breach of duty on the master's part. Necessarily there can be no negligence and breach of duty on the part of the master if provision for the safety of his workmen cannot be made in advance, or if a condition or situation is created as the work progresses, whereby a danger arises which can only be safeguarded against by the workmen then and there employed in the work.
In the instant case, however, it appears gas had been uniformly encountered at various depths in drilling wells in the Humble field, and the master therefore knew that at some time during the progress of the work gas would be encountered which might be in such volume and of such noxious character as to render same dangerous to those engaged in drilling the well. The jet which would have carried the noxious gases away was an appliance which would have rendered the place safe to work, and it could have been placed upon the well when drilling first began, or at any time prior to the appearance of the gas. It would in no wise have interfered with the work, and would have been there ready for use whenever the gas was encountered. Therefore the master could have and should have provided a safe place for the decedent to work; and, the reason for the rule referred to in the majority opinion failing, the rule itself would not apply.
My views upon this subject might be elaborated at greater length, but it is unnecessary to do so, since I concur in the view that it conclusively appears the decedent was aware of the danger attached to working around the well without the same being equipped with a jet, or was legally chargeable with knowledge thereof, and he therefore assumed the risk incident thereto, wherefore appellees are precluded from recovery herein.