Vestesen v. Maier Brewing Co.

KINGSLEY, J. On February 27, 1961, an accident occurred resulting in the death of Louis J. Vestesen, and injury to Vasser J. Allen, who at that time were engaged in the course of their employment for Halbert Brothers, Inc. Actions were brought against defendant Maier Brewing Company for damages for wrongful death of Vestesen and damages for personal injury to Allen. Enterprise Insurance Company, as Halbert’s workmen’s compensation carrier, intervened in both actions; the actions were consolidated for trial. Following a trial on the merits, general verdicts were returned in favor of defendants, and against Vestesen, Allen and the intervener. Motions for new trial were denied. Only Vestesen and Allen appeal, and Allen has adopted Vestesen’s brief.

Facts

Vestesen and Allen were two members of a four-man crew, which also included foreman Toberman and operator Idol; all four men were employees of Halbert Brothers. Halbert Brothers were engaged by defendant Maier to raise two steel tanks from the yard to the roof of a taller building where they were to be lowered through the roof. As part of that operation, the crew was engaged in lifting two “A" frames, weighing about 150 pounds, by means of a cable attached to a winch and boom owned by Maier and permanently attached to the roof of the building. The shaft of the winch broke, causing the cable to unwind and the load to fall on Allen and Vestesen, resulting in the injuries herein complained of.

[165]The theory of plaintiffs’ claim against Maier is that the winch was defective, that Maier failed adequately to warn plaintiffs, or their employer, of that defect, and that, for that reason, Maier was liable to plaintiffs, either under the theory that Maier was a statutory “employer” who had failed to comply with applicable safety orders, or under the theory that Maier, as the owner of the premises, had not warned plaintiffs (its invitees) of the danger.

I

In determining the validity of plaintiffs’ contentions that the above theories were not properly presented to the jury, we must bear in mind that, unlike the usual case in this area of law, it is not contended that the “premises,” in the sense of the physical locale of the work to be done, were unsafe, but rather that a particular piece of equipment, namely the winch and its boom, were unsafe by reason of a defect in the winch itself.

We think that it is clear that Halbert and Halbert’s employees, including Vestesen and Allen, were aware of the ordinary risks involved in working in an area below a load being lifted by even safe equipment, and that they did not need warning of, and that Maier was under no duty to warn of, such obvious and normal dangers. The problem arises out of the claim that the defect in the winch created additional and unusual risks to workmen on the ground, that Maier had a duty to protect them against such unappreciated risks, and that Maier had not fulfilled that duty.