APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is a products liability case brought by James Barr for personal injuries allegedly sustained on July 27, 1971, in the course of his employment by the Eaton Asphalt Co. The defendant, Rivinius, Inc., is the manufacturer of the Rivinius Domor Shoulder Spreader which was leased to Eaton.
Prior to the incident, the plaintiff was not operating the machine, but had walked to a point in the roadway approximately 15 to 20 feet in front of it. He was standing facing north away from the spreader observing a truck tailgating its load, as the machine, pushed by a roadgrader, was moving in a northerly direction at a low rate of speed. The right front wheel of the machine struck the plaintiff's leg and pulled it under the machine, thereby knocking the plaintiff down and running over his leg. As a result, the plaintiff's leg had to be amputated below the knee.
The cause proceeded to trial against Rivinius on count II of the first amended complaint, which alleged at paragraphs 8 and 9 as follows:
"8. That the Defendant, RIVINIUS, INC., a Corporation, manufactured and placed upon the market the product known as the Rivinius Domor shoulder spreader, which reached the consumer in the condition in which it was sold by the Defendant and the Defendant knew or should have known that through foreseeable use as here, that the product was dangerous to an extent beyond that which would be contemplated by the ordinary consumer or user and in particular the Plaintiff in that the shoulder spreader's front wheels were improperly guarded or shielded which defect would not be discoverable by the Plaintiff.
9. That the Plaintiff was unaware of the aforesaid qualities which caused the product to be unreasonably dangerous."
At the close of all the proof, the plaintiff was given leave to file a second amended complaint to conform the pleadings to the proof. The new complaint omitted all reference to the questions of whether the product was dangerous "to an extent beyond that contemplated by * * * the Plaintiff," whether the defect was not "discoverable by the Plaintiff" and whether "the Plaintiff was unaware" of the unreasonably dangerous qualities. Instead it alleged:
"6. That the Defendant, Rivinius, Inc., a Corporation, manufactured and placed upon the market the product known as the Rivinius Domor Shoulder Spreader, which reached the consumer in the condition in which it was sold by the Defendant, which condition was unreasonably dangerous in that the shoulder spreader's front wheels were not guarded. [sic].
7. That as a direct and proximate result of the unreasonably dangerous condition of said spreader, the Plaintiff sustained severe and permanent injuries to his right leg * * *."
Thereupon, the defendant was given leave to file an answer to the second amended complaint. This new answer not only denied pertinent allegations, as did the former answer, but it also added an affirmative defense:
"1. That at all times relevant to the occurrence of July 27, 1971 plaintiff was aware of and realized the condition of the shoulder spreader about which he complains.
2. That if, as claimed by plaintiff, the condition of the shoulder spreader was unreasonably dangerous, then that fact was known to and realized by him and he assumed the risk of injury therefrom."
Concerning this affirmative defense, the trial court gave the following two instructions to the jury. Defendant's instruction No. 1A:
"Plaintiff claims he was injured and sustained damages by reason of a condition of defendant's shoulder spreader and that the condition was unreasonably dangerous in the following respect:
That the front wheels were not guarded.
Plaintiff further claims that the foregoing condition was a proximate cause of his injuries.
Defendant denies that the foregoing condition claimed by plaintiff existed, denies that the condition claimed by plaintiff was unreasonably dangerous and denies that any condition of its shoulder spreader was a proximate cause of plaintiff's injuries.
The defendant also sets up the following affirmative defense:
That, if the condition of the shoulder spreader was unreasonably dangerous as claimed by the plaintiff, then that fact was known and realized by the plaintiff and he assumed the risk of injury therefrom.
Defendant further denies that plaintiff was injured or sustained damage to ...