# Carrell v. Francona > Appellate Court of Illinois · May 16, 1973 · 12 Ill. App. 3d 180 URL: https://www.frixlaw.com/law-library/cases/7012999 ## Case - **Full name:** Clyde Carrell v. Dr. Anthony Francona - **Court:** Appellate Court of Illinois - **Decided:** May 16, 1973 - **Citations:** 12 Ill. App. 3d 180; 298 N.E.2d 246; 1973 Ill. App. LEXIS 2209 - **Precedential status:** Published - **Opinion:** Dissent by Burman - **Judges:** Burman, Dieringer - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7012999 ## Opinion text Mr. PRESIDING JUSTICE BURMAN dissenting: The plaintiff alleged that the defendant, Dr. Anthony Francona, was negligent in that he knew, or in the exercise of ordinary care should have known, that the electrical system in the chicken house was insufficient and defective and in that he permitted a fire hazard by allowing it to remain in this condition. I believe that these allegations were not proved by the evidence which appears in the record and that the court should have directed a verdict for the defendants. Dr. Francona and the plaintiff first met in 1936 at a Civilian Conservation Corps camp in which they were both employed. Since then they had been friends, and Dr. Francona had been the plaintiffs physician. In the fall of 1953 the plaintiff was employed as a journeyman electrician. He learned of Dr. Francona’s plans to invest in a chicken raising business through their friendship and approached the doctor about becoming manager of the chicken farm, stating that he had had “some experience with farming.” This led to the employment agreement which was executed on October 7, 1953. It was undisputed that the purchase of the Lake Villa property was Dr. Francona’s first venture into the chicken raising business. He received no notice of any defect in the electrical system prior to or at the time of his purchase of the farm. He never resided on the premises. In October, 1953, the plaintiff and his family moved into the residence pursuant to the terms of the employment agreement. The plaintiff testified that he inspected the electrical system in the chicken house shortly after he arrived “because he was curious” about it. He reported no defects to Dr. Francona nor made any complaint at that time. The employment agreement provided, among other things, that the plaintiff had tire responsibility of repairing and maintaining the premises and all equipment on it. He did some electrical work in the chicken house, which included putting in an additional line and replacing fuses and light bulbs periodically. He used his own judgment as to tire loads which the system would bear and as to the types of fuses and bulbs which should be employed. He also testified that on one occasion he wired around a fuse after it had btuned out. Once or twice during this period he mentioned to Dr. Francona that he thought the electrical system was outmoded and should be replaced, but he never indicated that the system created a fire hazard or that it could not be utilized safely until the first litter of chicks was raised and sold. Under the employment agreement the plaintiff was to make all minor repairs on the premises at his own expense. He was obligated to pruchase one half of the equipment needed for operation of the farm. His compensation was based upon a percentage of the profits derived from the sale of the chicks. He was obligated to cooperate with the representatives of Corn-Belt Hatcheries and to report to Dr. Francona, but was otherwise in complete control of the operation and maintenance of the farm. As the foregoing demonstrates, there is a complete absence of any direct or positive evidence that Dr. Francona was negligent. The plaintiff was in complete charge and control of the premises and was better informed of its condition than Dr. Francona. The plaintiff was a journeyman electrician. He had done work on the chicken house and was familiar with the wiring in it. At no time did Dr. Francona receive any notice that the electrical system was a fire hazard. He did not have sufficient personal knowledge to evaluate the system, and he relied upon the expertise of the plaintiff, whose duty it was to maintain the premises, It is also well settled in Illinois that an employee, particularly one who is ip complete charge and is a specialist, assumes the risk of known dangers, as well as those which are so obvious that knowledge of their existence is fairly to be presumed. (Chicago & E.I.R.R. v. Heerey, 203 Ill. 492, 495-97 .) It is also well settled that the question of contributory negligence is distinct from that of assumption of risk. (Kelley v. FletcherMerna Cooperative Grain Co., 29 Ill.App.2d 419, 425-26 .) Although the defendant affirmatively pleaded assumption of risk as a defense, the court refused to submit the issue to the jury. In so doing, the court deprived Dr. Francona of a defense to which he was entitled. The plaintiff’s testimony established that there were essentially two structures on the farm: the chicken house and the residence. The residence was located “some distance” from the chicken house. Electrical service to both structures was provided by a line which ran to a pole in the yard and then to the residence. It is unclear whether the line to the chicken house ran from the pole or from the residence. Sometime after eleven o’clock on the evening of January 3, 1954, the plaintiff was awakened by his wife, who told him that the lights in the residence were going dim. The plaintiff looked out of his bedroom window and saw that a portion of the upper floor of the chicken house was in flames. He got dressed, rushed out of the chicken house and entered it via the entrance vestibule on the south end. 'While he was inside, a draft blew the door shut, and the plaintiff was forced to exit through the building suffering burns. The plaintiff testified that his purpose in entering the chicken house was to shut off the main electrical switch. It is unclear why he felt compelled to do this. At trial, his counsel suggested that he did it “to save his family”; however, there is no evidence that the residence or its occupants were in any danger. It is apparent that the plaintiff left a place of safety to enter the burning building. When he did so he assumed the risks of this undertaking. The defendant’s tendered instruction was based upon I.P.I. 13.02. It was supported by ample evidence in the record, and I believe that the court erred in refusing to give it. I would reverse the judgment or, in the alternative, reverse and remand the cause for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7012999. Public record. Not legal advice.