APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Winnebago
County; the Hon. FRED J. KULLBERG, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1973.
On February 22, 1968, plaintiff's decedent, Lowell Reese, was supervising a crew of Chicago, Burlington & Quincy Railroad employees as they worked along tracks near Walnut, Illinois. The men were loading equipment onto a flatcar using a Schield Bantam crane manufactured by appellant Koehring Company. There were two powered cables, operating on separate drums on the crane; the right cable was being employed to lift materials and equipment, while the left cable held a "clam shell" bucket suspended at the top of the boom. The 1,200-pound bucket was not in use during the loading operation, and to secure the cable holding it, the crane operator had engaged both a foot brake in the cab and a hand-actuated "dog" or pawl, which was designed to lock the cable drum. Either device was intended to be independently sufficient to hold the cable fast. Reese was standing beneath the boom as the crew prepared to lift a rubble car with the right line. He gave a hand signal to the crane operator, indicating the need for more slack. At that moment, the left-cable foot-brake pedal "jumped off of the floor" in the cab and the bucket fell, striking and killing Reese.
Vella Reese, his widow, brought suit against the Chicago, Burlington & Quincy Railroad under the Federal Employers' Liability Act, 45 U.S.C. § 51-60 (1939), and against the Koehring Company on a theory of strict liability for a defective product. The railroad "counterclaimed" against Koehring for indemnity. Immediately before trial, plaintiff and the railroad executed the following agreement:
"Vella J. Reese, as administratrix of the estate of Lowell Isaac Reese, Deceased, and Vella J. Reese, individually hereby acknowledges receipt from the Chicago, Burlington & Quincy Railroad Company for the sum of Fifty-seven Thousand Five Hundred and No/100 Dollars ($57,500.00) as a loan without interest which said sum I promise to pay from any judgment I am legally entitled to collect from Koehring Company, Schield Bantam Division, a corporation, provided that I shall have no obligation to pay said sum from that amount of any judgment I obtain against Koehring Company, Schield Bantam Division, a Corporation, which exceeds Fifty-seven Thousand Five Hundred and No/100 Dollars ($57,500.00). I further agree that I shall use and pursue any reasonable and legal means which are available to me to collect any judgment I obtain against Koehring Company, Schield Bantam Division, a Corporation."
On plaintiff's motion, the railroad was dismissed without prejudice, and at the commencement of trial, only Koehring remained a defendant in the original cause. Testimony on behalf of the plaintiff tended to show that the failure of the foot brake was due to defects in design and manufacture, and that inadequate provision for lubrication of the "dog" pivot had been made by defendant Koehring. The defense introduced testimony to the effect that the failure of the "dog" to seat properly was the result of the railroad's inadequate maintenance of the crane. The Winnebago County jury returned a $149,000 verdict for plaintiff and against Koehring. At the conclusion of a bench trial on the railroad's counterclaim, the trial court found for the counter-defendant, Koehring, and ruled that the "loan agreement," in fact, constituted a covenant not to sue. Holding that plaintiff was therefore not obligated to repay the sum advanced, the trial court set off the amount of the loan ($57,500) against the verdict awarded Reese. Both the railroad and Koehring appealed, and the Appellate Court for the Second District affirmed the judgment against Koehring and in favor of Reese. (5 Ill. App.3d 450.) In reversing the trial court's order as to the set-off and reduction in judgment, the appellate court held the loan agreement enforceable according to its terms and concluded that it should be repaid by the plaintiff to avoid double recovery.
Koehring first asserts that the trial court erred in unduly restricting the defense of assumption of the risk, as interpreted by this court in Williams v. Brown Mfg. Co. (1970), 45 Ill.2d 418, and erroneously struck the following portion of Koehring's amended answer.
Further answering Counts III and IV of plaintiff's complaint, 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."
Later, during the opening statements, counsel for Koehring told the jury that the evidence would show that standing under a suspended bucket and permitting a bucket to remain on a crane during hoisting operations were contrary to the rules of the railroad and to accepted practices regarding the use of cranes. The court granted plaintiff's motion to exclude all such evidence from trial:
"The Court: The ruling is you can't show the railroad rules or the crane manufacturer's rules.
Mr. Keegan: All right, we will leave out the rules. Am I permitted to ask my engineer whether it is the accepted practice to hoist a load with one line while keeping the bucket on top?
The Court: No, that is going into the rules."
During the defense case in chief, counsel for Koehring made the ...