Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Reversed and remanded.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This suit arose out of an injury sustained by plaintiff, Jamee H. Barrett, on a golf course. She brought suit against defendant, Edward Fritz, to recover damages incurred as a result of that injury. After a trial the jury returned a verdict in favor of defendant and plaintiff appealed.
Plaintiff contends on appeal that the court erred in giving an instruction on assumption of risk under the facts of this case; that, even if such rule of law were applicable, the instruction given on the affirmative defense was erroneous, and that the court erred in striking a paragraph of plaintiff's complaint which charged defendant with negligently failing to keep a good and sufficient lookout.
Plaintiff testified that on September 3, 1956, she was playing golf at Edgewater Golf Course in Chicago in a foursome with her husband and another couple in the finals of the husband and wife championship. She and her husband had been members of the club for seven years prior to the day in question. The course is very tight and relatively short with narrow fairways. If a golfer sliced or hooked a ball, in all likelihood it would go into the next fairway. The day of the occurrence was a clear day with a rather strong wind.
Plaintiff and her group finished the 17th hole, left the green and walked to the 18th tee. The 18th tee is about 40 yards from the 17th green and 160 yards from the 17th tee. Before leaving the 17th green plaintiff looked back and saw no one at the 17th tee. At the 18th tee plaintiff walked to the ball washer (about 10 feet from the tee) while another member of her group teed off.
Meanwhile defendant Fritz and two other men, Quinlan and O'Keefe, arrived at the 17th tee and defendant teed off first. The 17th hole is about 135 yards long. He saw the foursome at the 18th tee. He selected a number four wood club and hit the ball which went directly toward the 17th green. He lost sight of it while it was rising. The next he saw of the ball it was going into the trees near the 18th tee. Defendant's handicap at the time of the incident was 36, which indicates that he was not a good golfer.
One of his companions was able to follow the ball and saw it go quite high, veer left and go into a tree. At no time did defendant or any one of his companions yell "fore."
Plaintiff was struck on the head by the ball and knocked unconscious. She suffered brain injury and thereafter underwent major operations.
Plaintiff first contends that the court erred in giving an instruction on assumption of risk under the facts of this case. A study of Illinois law shows that the courts of this state, with few exceptions, have limited the application of the doctrine of assumption of risk to master-servant cases and cases involving a contractual relationship between plaintiff and defendant. The Illinois Supreme Court in Pennsylvania Co. v. Backes, 133 Ill. 255, 24 N.E. 563, refused to apply the doctrine to a negligence action and said on 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 employees. 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."
The court adhered to that position in later cases such as Conrad v. Springfield Consol. Ry. Co., 240 Ill. 12, 88 N.E. 180, wherein it stated at page 17:
"Appellant's contention that appellee must be held, as a matter of law, to have assumed the risk cannot be sustained, since the doctrine of the assumption of risk is only applicable to cases arising between master and servant. Shoninger Co. v. Mann, 219 Ill. 242."
The Appellate Court cases are similar in language and limitation. In Davis v. Springfield Lodge No. 158, 24 Ill. App.2d 102, 164 N.E.2d 243, the court refused to allow the defense of assumption of risk where plaintiff, a long-time member of the defendant lodge, was injured on the lodge premises. The court held that the "doctrine of assumption of risk is applicable only in cases arising between master and servant."
The courts have sometimes spoken of the doctrine in terms of the contractual relation between the parties but generally have not gone so far as to extend the application to instances wherein no such relation exists. See Mueller v. Phelps, 252 Ill. 630, 97 NE 228; ...