Reese v. Chicago, B. & Q. R. Co.

• Citation: 5 Ill.App.3d 450,283 N.E.2d 517
• Decision Date: 26 May 1972
• Docket Number: No. 71--95,71--95
• Parties: Vella J. REESE, as Administratrix of the Estate of Lowell Isaac Reese, Deceased, and Vella J. Reese, individually, Plaintiff-Appellee, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Defendant, v. KOEHRING COMPANY, SCHIELD BANTAM DIVISION, a corporation, Defendant-Appellant. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Counter- Plaintiff-Appellant, v. KOEHRING COMPANY, SCHIELD BANTAM DIVISION, a corporation, Counter-Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 517

283 N.E.2d 517

5 Ill.App.3d 450

Vella J. REESE, as Administratrix of the Estate of Lowell

Isaac Reese, Deceased, and Vella J. Reese, individually, Plaintiff-Appellee, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Defendant, v. KOEHRING COMPANY, SCHIELD BANTAM DIVISION, a corporation,

Defendant-Appellant.

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a corporation, Counter- Plaintiff-Appellant, v. KOEHRING COMPANY, SCHIELD BANTAM DIVISION, a corporation,

Counter-Defendant- Appellee.

No. 71--95.

Appellate Court of Illinois, Second District.

May 26, 1972.

Thomas, Kostantacos & Traum, Rockford, Theo. G. Schuster, Kralovec, Sweeney, Marquard & Scoby, Chicago, Keegan & Gosdick, Rockford, for appellants.

Roszkowski and Paddock, Rockford, for appellees.

SEIDENFELD, Presiding Justice:

Plaintiff, individually and as administratrix of the Estate of Lowell Reese, deceased, sued the Chicago, Burlington & Quincy Railroad and the Koehring Company, Schield Bantam Division, to recover damages for the death of Lowell Reese, who was killed while working for the Railroad as a bridge foreman, when he was struck by the bucket of a crane. The action against the Railroad was premised upon the Federal Employers' Liability Act. The action against Koehring, as the manufacturer of the crane, was based upon a theory of strict liability.

The Railroad filed a counterclaim against Koehring seeking indemnity. We consider the appeals in both actions together.

On the eve of trial, plaintiff entered into an agreement with the Railroad under the terms of which the Railroad loaned plaintiff $57,500, without interest, which was repayable from any judgment plaintiff obtained against Koehring. The loan proceeds were not repayable if Koehring was found innocent of fault by the jury. On motion of the plaintiff, the action against the Railroad was dismissed without prejudice.

Trial of the action between plaintiff and Koehring proceeded. The jury found for the plaintiff in the sum of $149,000 and judgment was entered in that amount.

Jury was waived by the Railroad for the trial of the counterclaim against Koehring. The trial court held that the loan to the plaintiff by the Railroad constituted a covenant not to sue and that judgment against Koehring should be reduced by the amount of the loan. The court further held that the Railroad was not entitled to indemnity from Koehring.

I

We first consider the appeal of the primary suit by Koehring.

Prior to trial, the court struck that portion of Koehring's answer which alleged assumption of risk as an affirmative defense. Koehring argues that it was error to strike this pleading and that it should have been permitted to prove this defense under the circumstances of the case. It urges that the doctrine of assumption of risk, an available defense to a charge of strict liability, includes the element of misuse of the product even without proof that plaintiff had actual knowledge of the defect.

Plaintiff argues to the contrary and claims that a charge of 'misuse' may be an issue only in connection with the proof of the dangerous condition and proof that the defect caused the injury. Plaintiff contends that the pleading did not allege facts sufficient to support the affirmative defense and was, therefore, properly stricken.

The affirmative defense was stated:

'* * * defendant alleges that plaintiff's intestate, Lowell Isaac Reese, contrary to the rules of the Chicago, Burlington & Quincy Railroad, and contrary to the safe operation of a crane, ordered and permitted the clamshell bucket to remain on the crane during hoisting operations; and further he stood with the clamshell bucket suspended over his head and thus was guilty of an assumption of risk.'

We conclude that the trial court correctly held that the allegations amounted to a pleading of contributory negligence, not available as a defense to a strict liability action, rather than a pleading of the defense of assumption of risk.

Both parties rely upon Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970), but disagree as to its application. Koehring argues that the case holds that assumption of risk includes misuse of a product as a use which is for a purpose neither intended nor objectively reasonable. The opinion does hold that misuse of a product may bar a plaintiff's recovery. It does not hold that misuse is an aspect of the affirmative defense of assumption of risk. The court makes the distinction, at page 426, 261 N.E.2d at page 309, stating:

'There is likewise general agreement that a plaintiff who knows a product is in a dangerous condition and proceeds in disregard of this known danger (often termed 'assumption of risk') may not recover for resulting injuries * * *' (Citations omitted).

and on page 430, 261 N.E.2d at page 312:

'We emphasize that 'assumption of risk' is an affirmative defense which does bar recovery, and which may be asserted in a strict liability action notwithstanding the absence of any contractual relationship between the parties.'

and further distinguishes the defense of 'misuse' by stating on page 431, 261 N.E.2d on page 312:

'In addition, as earlier noted, plaintiff's misuse of the product may bar recovery. This issue may arise in connection with plaintiff's proof of an unreasonably dangerous condition or in proximate causation or both. See Annot. 13 A.L.R.3d 1057, § 11 (1967).'

Here the allegations contained in the pleading of the affirmative defense of assumption of risk did not meet the requirements of Williams. There was no statement that plaintiff knew that the product was defective and, therefore, dangerous (counsel conceding to the trial court that there would be no such proof); and there was no allegation that Reese proceeded in face of the known danger to his injury. The appellant is incorrect in arguing that misuse is a facet of the affirmative defense of assumption of risk.

Defendant was entitled under Williams to show misuse of the product on the issue of causation. A review of the facts satisfies us that he was not precluded from doing so. In fact, he was permitted to explore matters which went beyond the issue.

At the time of the accident the crane manufactured by Koehring and owned by the Railroad was being used by Reese's crew to lift loaded push-carts onto railroad flat cars. Reese was killed on February 22nd, 1968. The crane had been manufactured in 1966 and had been sold to the railroad in 1967 by an intermediate company. On delivery it had been inspected by McClaran, a member of the Reese crew who was operating the crane at the time of the accident, and McClaran's assistant. McClaran had no difficulty with the machine prior to the date of the accident. It was McClaran's duty to lubricate the machine daily. The crane consisted of a cab and a boom with two lines attached. Each of the lines was designed to carry a load of 6000 pounds. The lines wind and unwind on diesel powered drums which the operator controls by levers in the cab.

There are two sets of independent braking mechanisms. The mechanical brakes are operated by depressing foot pedals and may be locked by engaging notches in the pedal to floor plate latches by a movement of the foot. The second brake is the so-called 'dog' or latch mechanism which engages cogs on, and locks, the drum so that the line can be held without the need for applying the foot brake. The dog is manually raised from or lowered into the drum cog by means of a lever in the cab.

At the time of the accident there was a clamshell bucket--a 1200 pound bucket with jaws that open and close--attached close to the point of the boom, near the end of it, on the left line. The right line was being used for handling materials. McClaran had never previously used one line as a hoist while keeping an unused clamshell bucket suspended from the top of the boom by the other line.

The crane operator testified that immediately prior to the clamshell bucket falling on Reese, both braking mechanisms were engaged. He also testified that he heard a noise like 'clang' when the accident occurred and the right foot brake jumped off the floor.

There is evidence that in order for the clamshell bucket to fall, both braking mechanisms had to fail. On the day following the accident employees of the railroad attempted to simulate the conditions by locking the dog lock mechanism in position and releasing the foot brake. On two out of five occasions the clamshell bucket fell until the foot brake was reapplied.

There was evidence that the foot brake pedal mechanism was defective in that one-half of the contact surface between the pedal and the plate was missing due to a casting defect. An expert witness testified that in his opinion the brake pedal released due to vibrations or other causes combined with the lack of the bearing surface. A metallurgical engineer concurred in this opinion. The mechanical expert also testified that in his opinion the design of...