dissenting.
I respectfully dissent and would uphold the jury’s verdict and the trial court’s judgment awarding damages to Compton.
I disagree with the majority opinion in several respects. First, I would hold that *229the trial court was correct in submitting the issue of whether the officers were independent contractors or employees to the jury, and the jury’s finding that the officers were employees was supported by sufficient evidence.
As the majority correctly recites, an independent contractor is one who, in the pursuit of an independent business, does specific work for others while using his own means and methods. Living, Inc. v. Redinger, 667 S.W.2d 846, 855 (Tex.App. — Houston [1st Dist.] 1984), rev’d on other grounds, 689 S.W.2d 415 (Tex.1985). An independent contractor performs this work without submitting himself to the control of the person for who the work is being done. Id. When the five factors from Newspapers Inc. v. Love, 380 S.W.2d 582, 591 (Tex.1964) are used to determine the amount of control retained by Celanese over the police officers, the evidence is sufficient to support the jury’s finding that the officers were employees rather than independent contractors.
Celanese controlled the time that the officers were to be present and direct traffic in and out of the plant. Celanese specifically instructed the officers as to where the traffic control should take place. The company instructed the officers that they were to wear their police uniforms to the job site. The officers were paid by check, from Celanese, for each hour they worked. They were required to submit time sheets in order to get their checks; much like any hourly employee. Celanese retained the right to fire the officers; a right they exercised after the accident. Lastly, while the majority is correct when it states that Officer Lawrence never specifically testified that he was hired as an employee, he did state that he was never told that he was being hired as an independent contractor. This was confirmed by Ms. Lott, the Celanese employee responsible for finding the officers needed to direct traffic. The tone of this testimony could have suggested to the jury that the officers were Celanese employees.
There was ample evidence for the jury to find that the officers were Celanese employees. The jury is the judge of the credibility of the witnesses and the weight to be given their testimony. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App. — Houston [1st Dist.] 1984, writ refd n.r.e.). A court of appeals may not substitute its opinion for that of the jury merely because it might have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). Thus, I would overrule appellant’s first point of error.
Second, even if the officers were independent contractors, I would hold that the jury’s negligence finding should be upheld based on the argument that traffic control is inherently dangerous. Generally, a person or entity is not liable for the acts of an independent contractor; however, there are exceptions to this rule. See 44 TEX.JuR.3d Independent Contractors § 24 (1981). For example, if the work to be performed by the independent contractor is inherently dangerous, the duty of care cannot be delegated to an independent contractor. Cage v. Creed, 308 S.W.2d 78, 80 (Tex.CivA.pp.—Waco 1957, no writ). While I have found no Texas cases specifically holding that traffic control or traffic direction is inherently dangerous, it seems to me that a standing out on a 50 m.p.h. hour highway trying to control traffic is at least as dangerous as an excavation in a public road. See id. Thus, I would hold that Celanese cannot escape liability because it cannot delegate its duty of care as to traffic control.
Lastly, the evidence was sufficient for the jury to have found that Celanese committed independent acts of negligence, i.e., it acted negligently, apart from any actions by the officers. At trial, Compton claimed that Ce-lanese was negligent: (1) in failing to conduct a study or inquiry into the minimal safety requirements or procedures necessary for safe traffic control in the intersection; (2) in failing to provide the necessary equipment and personnel needed to regulate traffic in a safe manner; and (3) in failing to inquire into the qualifications of the officers hired to direct traffic. In support of these claims, Compton presented the expert testimony of Dexter Jones.
Jones was a traffic safety engineer with the Texas Department of Transportation (the Texas Highway Department) for over 30 years. His duties at the department includ*230ed determining the safety requirements of either the State or other entities before any action was taken to alter traffic flow on public roadways. In other words, before the State decided to put up new traffic signals or other traffic control devices, Jones would conduct studies to determine the safest way to proceed. Jones now owns a private consulting firm.
Jones conducted a study of the intersection in this case and concluded, based on his expert opinion, that the minimum traffic safety requirements necessary to safely interrupt the flow of traffic at the intersection were absent. He testified that in order to safely direct traffic at the intersection one would need, at a minimum:
(1) Flashing lights placed at a distance from the intersection to warn drivers to be alert for a change ahead;
(2) Reflective signs, e.g., “Be prepared to stop;”
(3) Traffic cones much larger and in greater numbers than those provided by Celanese;
(4) Reflective vests;
(5) “Slow/Stop” paddles for the officers;
(6) Traffic wands or flags;
(7) Walkie-talkies; and
(8) “Flagger” signs.
He told the jury how the equipment should have been used based on the 50 m.p.h. speed limit. The evidence showed that the only equipment used by the officers were ten small traffic cones, and Jones stated they were not properly positioned, and reflective vests.
Jones testified that Celanese could have hired a consulting firm to determine what was necessary for safe traffic control for approximately $75.00 an hour. The evidence showed that Celanese did not hire a consulting firm and did not provide the equipment necessary for safe traffic control. Thus, the jury could have found that Celanese was negligent in failing to properly assess the situation and in failing to provided the proper traffic control equipment.
Further, it was undisputed that Celanese did not check the qualifications of the officers it hired. In fact, it never knew from day to day which officers would be at the job site. Officer Currie specifically stated that while she had some training in traffic control, she had never conducted traffic control as a part of her police duties. Thus, the jury could have found that Celanese was negligent in failing to adequately cheek out the officers.
I would affirm the judgment of the trial court based on the jury’s verdict.