Appeal from the Circuit Court of Jackson County; the Hon.
PEYTON H. KUNCE, Judge, presiding. Judgment affirmed.
Defendant appeals from a judgment entered on a jury verdict of $20,000 in favor of the plaintiff in a suit for personal injuries. No contention is made that the verdict is excessive.
Plaintiff, Robert Hensley, age 39, is the son of the defendant, Lester Hensley, and both reside at Murphysboro, Illinois. The defendant was in the business of buying and selling apples on the date of the accident in question which occurred on September 6, 1962 at Hillsboro, Illinois.
The complaint alleged that on September 5, 1962, the defendant loaded his truck with crates of apples in such a manner that the stacked crates were resting on apples rather than the solid wooden edge of the crates and that as a result thereof, the crates of apples were unstable and easily tipped or tilted; that about eight o'clock a.m. on September 6, 1962 and after the truck had been loaded, the defendant went to the home of the plaintiff and asked him to accompany the defendant on a trip to central Illinois for the purpose of assisting defendant in the unloading of the apples which were to be sold to various storekeepers; that said assistance was to be rendered by plaintiff to defendant without consideration or remuneration; that in making a particular sale, defendant asked plaintiff to climb upon the load of apples and to hand several crates of apples down to the defendant who was standing on the street; that at no time did the defendant advise the plaintiff that the crates of apples were loaded in an unstable manner, although the defendant knew or in the exercise of reasonable care should have known that the crates were unstable and easily tipped; that plaintiff could not observe the way the crates were loaded on said truck due to the solid wooden sides on the bed of said truck; that as the plaintiff started to hand down a crate of apples to the defendant, the wooden crate on which he was standing tipped and overturned due to the unstable and dangerous manner in which it was loaded and plaintiff was thrown from the top of the load of apples onto the pavement thereby suffering severe and permanent injuries; that at all times the plaintiff was in the exercise of due care and caution for his own safety.
The defendant denied the allegations of the plaintiff's complaint and also set up the affirmative defense of the assumption of the risk, not contending, however, that a master and servant relationship existed. A motion was made to strike this defense which was denied by the trial court. However, the trial court sustained plaintiff's objection to an assumption of the risk instruction at the trial.
On September 5, 1962, the defendant, Lester Hensley, went to an orchard in Murphysboro, Illinois to pick up a truckload of apples. His truck was loaded with crates of apples, using two types of crates. One type is called a "field crate" and the other type is a cardboard box in which top grade apples were placed. The field crate is a wooden box approximately eighteen inches long, twelve inches wide and twelve inches deep. The filled field crates were stacked on that part of the truck bed nearest the cab. The cardboard box type of crates were placed to the rear of the truck bed. At the time the apples were being loaded, Ted Lipe, an employee of the defendant, noticed that the field crates were filled to overflowing, past the top of the crate, making it impossible for the field crates to be stacked solidly, one atop the other. He called this to Lester Hensley's attention and employees of the orchard then removed some of the apples from some of the crates. Not all of the field crates were evened off; some were left packed and stacked as they had been, causing an uneven load. When the truck was completely loaded, the top layer of the crates extended about four inches over the top of the side panels of the truck.
Lester Hensley drove his truck home and the following morning at about 7:00 or 7:30, he and Ted Lipe proceeded with the truckload of apples to the home of the plaintiff, Robert Hensley. Lester Hensley asked Robert to accompany him and Ted Lipe on a trip to sell the crates of apples. Lester told Robert that because of his asthma, he (Lester) could not climb up on the truck and he thought that Ted Lipe, due to his size, was unable to climb atop the large load of apples. He asked Robert to accompany them so that Robert could climb atop the load of apples and assist in unloading them. Robert had been with his father once or twice before on selling trips but had never unloaded apples from the truck. He would either stay in the cab of the truck or take a walk. Robert Hensley had not seen the truck being loaded the night before. The first time he saw the load of apples was the morning Lester Hensley and Ted Lipe came to his house to ask him to accompany them on the trip. He agreed to go along and help unload the apples.
They proceeded north from Murphysboro, made two or three stops and sold some of the apples that were crated in the cardboard crates located at the rear of the truck bed. Robert Hensley did not help unload these cardboard crates. They then proceeded to Hillsboro, Illinois where Lester Hensley parked the truck at an angle in front of the Kroger Store in Hillsboro. The manager of the store agreed to purchase six or eight crates of apples of the type packed in the field crates. Lester Hensley asked Robert to climb atop the truck and hand him the crates of apples because "Ted was kind of heavy and it was too much to ask him to get up there to get them." Robert Hensley climbed atop the load of apples and proceeded to hand down the crates from the top row of apples packed in field crates to his father and Ted Lipe who were standing on the street beside the truck. After some difficulty getting the first crate of apples loose, Robert handed the crate over the side. He reached down and picked up a second crate and handed it over the side. He then reached down and picked up the third crate of apples. When he pivoted to hand the third crate of apples over the side, he placed all of his weight on his right leg and the field crate on which he was standing astride, with a foot on each end, tilted causing him to lose his balance and fall over the side of the truck to the concrete street below.
Appellant contends: (1) That the plaintiff was precluded from recovery because he voluntarily encountered a known risk which resulted in his injuries; (2) that it was error for the court to refuse to instruct on the defense of the assumption of the risk since it was made an issue by the pleadings; and (3) that there was no evidence of any negligence of the defendant and therefore it was the duty of the trial court to direct the verdict in his favor.
The defense of assumption of the risk is based upon the principle that one who voluntarily assumes the risk of injury from a known danger is debarred from a recovery. The doctrine emerged or at least was distinctly developed with the common law action of a servant against his master. It was first enunciated in Illinois in the case of Camp Point Mfg. Co. v. Ballou, 71 Ill. 417, wherein the court said at 419 and 420:
"The doctrine upon this subject appears to be, that an employee can not recover for an injury suffered in the course of the business about which he is employed from defective machinery used therein, after he had knowledge of the defect, and continued his work, it being held, that, upon becoming aware of the defective condition of such machinery, he should desist from his employment; but if he does not do so, and chooses to continue on, he is deemed to have assumed the risk of such defects, at least when he had not been induced by his employer to believe that a change would be made, and had not plainly objected."
The defense of assumption of the risk has always been confined to master and servant cases by the Supreme Court of our state. In the early case of The Pennsylvania Co. v. Backes, 133 Ill. 255, 24 N.E. 563 (1890), the court said at page 262:
". . . But in this case the relation of master and servant did not exist between the plaintiff and the railroad company. The former was a stranger to the latter. He was not employed by the company, and had nothing to do with it or its employes. Appellee was a laborer in the employ of the Star and Crescent Flour Mills Company. His business was to assist in moving cars on the scale platform and shovel wheat from them into the shed of the mill company, and we are inclined to hold that the exemption of the master, growing out of the relation of master and servant, and the servant's contract to assume ordinary risks incident to the business, does not apply."
To the same effect are the cases of Chicago & E.I.R. Co. v. Randolph, 199 Ill. 126, 65 N.E. 142, Shoninger Co. v. Mann, 219 Ill. 242, 76 N.E. 354, Conrad v. Springfield Consol. R. Co., 240 Ill. 12, 88 N.E. 180, and O'Rourke v. Sproul, 241 Ill. 576, ...