Appeal from the Circuit Court of Macon County; the Hon. James
A. Hendrian, Judge, presiding.
PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 15, 1984.
A highway construction accident.
A products liability suit.
A jury verdict for the manufacturer.
In the fall of 1980, Rodney Auton was working on the Fitzgerald Road highway construction project in Decatur. He was assigned to shoot grade for the operator of the dirt scraper on the project. As a grade shooter, Auton used a hand level and a surveyor's stake to check the level of dirt in the area being scraped. Then he would indicate to the scraper operator the amount of dirt to be removed.
On the morning of October 13, Auton was shooting grade for Keith Spencer. Spencer had made several runs that morning and had backed up to make another when he noticed Auton's hand level in the bowl of the scraper. Spencer dismounted his machine and found Auton crushed to death under the rear tires.
Auton's wife, Judith, filed suit against John Deere — the manufacturer of the scraper — claiming that the machine was unreasonably dangerous. She alleged that it was not equipped with adequate rear view mirrors and that the design of the wiring leading to the backup warning signal was faulty. After a jury trial, judgment was entered on the jury's verdict in Deere's favor.
On appeal, Judith raises several issues, the first few of which deal with the doctrine of assumption of risk.
The trial judge instructed the jury that if Deere proved that the decedent assumed the risk of working with the scraper, then Judith Auton was completely barred from obtaining any recovery from Deere. Auton argues that it was reversible error for the court to give the instruction because the Supreme Court of Illinois recently changed the rule that assumption of risk acts as a total bar to recovery. Although she is correct that the supreme court did recently change the rule, that change is not controlling in this case.
The rule in Illinois at the time of the trial was that if a defendant could prove his affirmative defense that the plaintiff assumed the risk, then the plaintiff was totally barred from seeking recovery for his damages. (See Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.) That rule was changed, however, in the recent case of Coney v. J.L.G. ...