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Schroeder v. Blitz-Weinhard Co.

December 21, 1972

SCHROEDER, RESPONDENT,
v.
BLITZ-WEINHARD COMPANY, APPELLANT



Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge.

David C. Landis of Gearin, Landis & Aebi, Portland, argued the cause and filed briefs for appellant.

Alex Parks, Portland, argued the cause for respondent. On the brief were White, Sutherland, Brownstein & Parks and David F. Rennie.

In Banc. McAllister, J.

Mcallister

The plaintiff is a mechanic employed by Pacific Scale Company, who, during a service call to defendant's brewery, was injured while using defendant's hoist. The jury returned a verdict for plaintiff and defendant appeals. We reverse.

The controlling question is whether plaintiff was negligent as a matter of law in attempting to ride on the hoist while using it to lift his equipment.

Plaintiff's job was to install and service scales. On June 6, 1969, he went to defendant's brewery to balance its scales. He brought with him a number of test weights weighing a total of about 280 pounds, a tool box weighing about 40 pounds and a hand truck, all of which he unloaded on the first floor of one of the brewery buildings. The scale which plaintiff intended to service was on the second floor.

Plaintiff had made five or six prior service calls to defendant's brewery. Usually the service calls were made by one man, but "a couple of times" plaintiff went to the brewery with a fellow employe, who showed him "where the scales were and how they were to be checked, and so forth."

The service men used defendant's hoist to get their weights and other equipment to the second floor where some of the scales were located. The hoist was a simple drum hoist powered by electricity. The hoisting was done by a single steel chain with a three-inch hook on the bottom end. Three different slings were used on the hoist, but we are concerned only with the barrel sling and the dolly lift. One of plaintiff's witnesses,

a fellow employe, described how the hoist was used by Pacific's servicemen.

"Q Did you and Mr. Schroeder have occasion to test scales at Blitz Brewery?

"A Yes.

"Q Would you tell the jury how you went about it, how you went about testing these scales and getting your weights up where the scales are?

"A Of course, there are a number of buildings, and different scales to check; but the one I believe you're referring to was in -- there was an elevator hitch we used to haul our equipment up; oh, 300 pounds of weight, a dolly, tool box, and so forth, to take upstairs, ...


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