APPEAL from the Circuit Court of Winnebago County; the Hon.
FRED J. KULLBERG, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
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.
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."
• 1 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 Manufacturing Co. (1970), 45 Ill.2d 418, 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 ...