On Appellant’s Motion for Rehearing.
In considering appellant’s motion for rehearing, we find that, in order to properly answer appellant’s challenge that findings of fact by this court in the original opinion are not supported by evidence, it will be necessary to quote the evidence on which this court acted. Ground No. 52 of said motion' criticizes the findings of fact made by this court as follows: “Your Honors erred wherein it is held, ‘that the regular employees of said Warehouse Company moved the lining and vault door on to the sidewalk in front of the bank building; that said material was then taken charge of by Union iron workers, employed by said Warehouse Company for that purpose; that they had lowered said lining and door into the basement and were tq move same to proper position in front of the vault opening; that at the time of appel-lee’s injury, the vault door was about one and one-half lengths from said opening and being moved toward it.’ ”
The following testimony was the basis for the above holding, namely: R. C. Daubitz, witness for appellees, testified as follows:
That he was an iron worker and had been so engaged for fifteen year's; that he had known appellee Wolfe for ten years; that he was an iron worker and had worked with him on several jobs doing iron work; that at the time appellee was injured he was working in the basement of the First National *390Bank Building; that he (Daubitz) was working for the Mosler Safe Company putting up armor plates on the vault being built in said basement of the Bank Building, and appellee was working for the Dallas Transfer & Terminal Warehouse Company at that time; that all the iron work on the building of the safe (vault) was Mosler Safe ■ Company’s work; that the armor plates were being put up on the inside of the walls.
“Q. How long had it been since Mr. Wolfe had been in there doing that kind of work? A. Well, he had been in there working with us in there, but at that particular time that they moved that door back, which was the Dallas Transfer & Terminal Warehouse Company’s job to move this door back —and they employed union men.
“Q.. Was 6. W. Wolfe, working for the same people that you were on— A. No sir, he was not, he was working for the Dallas Transfer & Terminal Warehouse Company at that time. That the hours put in for the Safe Company were paid by the Mosler Safe Company and the hours that were put in for the Transfer Company were paid for by that Company; the Transfer Company merely moving stuff in there and the iromworkers installed and put it up, did that work.
“Q. Is it not true Mr. Daubitz that the Transfer Company wanted to use their men to move this stuff in, that is move it from the Railroad Company down to the basement, don’t you know that they had some trouble with the Union? • A. They had.
,.“Q. That the Union wanted Union men to do the work inside of the building? A. We had some trouble, I don’t know what the outcome was, but they put the Union men to work there.
“Q. Now when the Transfer Company put stuff on the sidewalk then they had nothing more to do with it there — the Union men took charge of it and handled it from then on? A. Yes sir.”
P. J. Kain, a witness for appellee, testified as follows:
That he was a structural iron worker, had worked as foreman on one job for the Dallas Transfer & Terminal Warehouse ComxJany, namely, the safe job in the First National Bank, putting steel down in the hold (meaning basement) where appellee was working under him at the time he was hurt.
“Q. Were you present there when Mr. Wolfe was hurt? A. Tes sir.
“Q. Tell just what occurred there? A. Well, that morning, we started back with the door on rollers; is a narrow plafce; just little bit more than enough room for the door to get in there; had to go back through that hall, then, turn around there and get in line; then, go back and turn the door again; then, straighten it up to go into the vault — about 50 feet to where the door went — opening, and we were just about, .1 would say, length or length and a half of the door being in its place when one of the rollers began to get cross-ways and wouldn’t ‘track’ — just where got to do that set jack to straighten the roller up — place the weight on the jack — we got it up on the jack; place-something under the jack; we could not use the jack on the tile floor; we set it on the jack to be straightened and to release the roller to straighten it; Wolfe reached down in there to straighten the roller and, just at that time, the teeth in bottom of these jacks — got the crippled jack and jack moved a little bit — just as he went to step out of there it crushed him against the wall.
“Q. Who instructed him to do that work? A. I was; I was in charge.
“Q. Who hired you to take charge of that work — with reference to the Dallas Transfer & Terminal Warehouse Company? A. I was hired right there through the Mosler people to take charge of the setting work that came on the inside there; the Transfer Company was to carry it to the sidewalk.
“Q. What were the duties of the Dallas Transfer & Terminal Warehouse Company— what part of that work were they to do and what part of the work were they doing? A. They were to distribute it to its place; that part of it; was to take it and put it inside; inside the vault — for the steel — and the door was to be put in front of the opening ; then, it was turned over there for erection by the Mosler Safe People.”
That the Dallas Transfer & Terminal Warehouse Company paid him for his work as foreman over the Union employees working under him; that he was working for them there direct.
“The Court: How do you know, Mr. Kain? A. Well, I know that we had work and got our money from them, and know got orders, which would have to do where, end of their work was distributing iron and putting it in piles and the door; when Wolfe went to go with the door and put it in front of the opening—
“The Court: How do you know? Was Wolfe working for the same people? A. He was working in my ‘gang’ there with four (4) men and myself working there and all working direct for those people — Dallas Transfer & Terminal Warehouse Company.
“Q. And none of the Dallas Transfer & Terminal Warehouse Company’s regular employees doing this work ever came any closer to this work than the sidewalk? A. Not after we straightened it.
' “Q. Not a fact that regular employees, under that agreement, should place it .on the sidewalk? A. It was in the contract what they were to do.
*391“Q. The first part of the work the Dallas Transfer & Terminal Warehouse Company was bringing the material down into the basement, was it not? A. Yes sir.
“Q. Did the Dallas Transfer Company right from the start use Union men to bring that stuff from the sidewalk down into the basement? -A. No sir, there was a little argument.”
Witness further stated:
“Our International has agreement with the Hosier People that their work shall be done by Union workers, however, when came here, and Transfer Company knew that when they started to deliver that iron and bring it back in place, and, when brought attention to it, there was a certain change .came on, right there — attention was brought it; after, had straightened out I got to work in there.
“Q. What are the facts as to whether or not you were told by Mr. McCain where to put this stuff? A. Yes, sir, told by him, and had to go in front of the opening where we were moving it to place the door within a length and a half or two lengths of itself up there at the time Wolfe was injured.
“Q. Where were you to move it to (refer-, ring to the door)? A. Prom the sidewalk down to a little hall and took it down the hall-way, had to go around two corners.
“Q. And going to what place? A. Then . straighten out and go into where the opening of the vault door.
“Q. How much distance? A. About length and a half of itself.”
We think the above testimony sufficient to demonstrate that this court did not err in making the fact statement as claimed by appellant’s counsel; by this we do not mean' to say that there was no evidence in support of said claim, or to criticize counsel for presenting same. We have carefully considered all 'other grounds of the motion, and it not being made to appear thereby that we should recede from and hold contrary to the disposition made of appellant’s appeal, said motion ⅛ therefore refused.