Appeal from the Circuit Court of Cook county; the Hon. WILBERT
F. CROWLEY, Judge, presiding. Judgment affirmed.
JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Plaintiff sued under the Federal Employers' Liability Act and the Federal Safety Appliance Act to recover damages for personal injuries sustained by him while employed as brakeman for defendant, the Pennsylvania Railroad Company. Trial by jury resulted in a verdict and judgment in his favor for $50,000. His motion for a new trial was denied, and he appeals.
It appears that on March 29, 1955, at about twelve-thirty in the afternoon, defendant's switching crew was bringing into coal mine No. 32 of the Maumee Coal Company at Linton, Indiana, from mine No. 23, a distance of four to five miles, twenty-six empty hopper cars, each approximately forty-five feet long and fifteen feet high. These cars were being shoved with the locomotive and the cab car at the rear. Three tracks, numbered 1, 2, and 3, converged about five car-lengths south of the tipple so that only one track actually was used for loading coal. At the south end of the track is a clay embankment, approximately four feet high. On the day in question, tracks No. 1 and 2 were clear, and there were nine cars at the end of the No. 3 track. The elevation or upgrade of the tracks is Page 507-4 south of the tipple; thus the empty cars are allowed to roll, one at a time, downhill (north) to the tipple, to be loaded. Plaintiff was a rear brakeman, working with Engineer Fulk, Fireman Smith, Head Brakeman Waggoner, and Edwards, a conductor. Motions of the locomotive were initiated by hand signals transmitted by members of the crew. Inasmuch as they were shoving cars with the locomotive at the rear, plaintiff was riding on the top of the end car the one most distant from the engine so that he could see and relay the signals controlling the movement of the train. On this particular day, Edwards threw the switch at the north end of the No. 1 track so that the cut of cars could enter. The engineer was then given a "back-up" signal. There is evidence that Waggoner was out of position at the time of this movement. The engineer stated that it was customary for the head brakeman to be stationed on the fireman's side; that Waggoner got off the cut at the tipple and went to the east side of the cut, the same side the engineer was on; and that he received no signals from either the fireman or Waggoner.
When the car on which he was riding was about ten car-lengths from the end of the track, plaintiff gave a "steady" signal which was intended to prepare the engineer to stop. At that time plaintiff's head and shoulders were above the top of the car. There was no response insofar as the forward movement of the car was concerned; it continued to proceed at five or six miles per hour. When his car was about eight car-lengths from the end of the track he gave a stop signal with his hands, but there was no substantial decrease in the forward movement of the train. Plaintiff realized that the other trainmen were not relaying his signals to the engine crew. He then went down the ladder on the end car and, while holding onto it at the base with one hand, "hit the air," i.e., he opened the Page 507-5 angle cock. The angle cock is at the end of the car between the drawbar and the front wheels and has a lever about one inch wide and six inches long. Opening the angle cock causes air to be released simultaneously on each of the cars, including the engine; the operation is designed to slow down or stop the train. When plaintiff opened the angle cock, the last car was about three car-lengths from the embankment at the end of the track. He stated that, in his opinion as an experienced railroad man, with twenty-six hopper cars in the cut moving about five miles per hour, when the angle cock is opened on the end car, the train should stop within fifty to sixty feet. This cut did not stop. Plaintiff attempted to get off after setting the angle cock, but as the train continued on, it struck the embankment, partially breaking through it and crushing him between the car and the embankment. Plaintiff charged in count II of the amended complaint that the air brakes failed to function efficiently, and that such inefficiency constituted a violation of the Federal Safety Appliance Act. Evidence of the gravity of plaintiff's injuries was fully submitted to the jury which, as heretofore stated, awarded him $50,000 as damages. He considers the award inadequate, and contends that it was induced by improper instructions, conduct of defendant's counsel, and erroneous rulings on evidence. Aside from charges that he was "overreached" by "misrepresentation, deceit and perjury," that there was subornation of perjury, perpetration of fraud upon the court and counsel, and that defendant's attorney reneged in a pretrial settlement charges that will be considered later the principal ground urged for reversal is that the court erred in instructing the jury. Counsel especially stresses what he considers the error of defendant's instruction No. 17, which reads as follows: Page 507-6
The defendant in this case filed an answer to both counts of the plaintiff's complaint. The defendant denies that it or any of its agents or employees were guilty of any acts of negligence. In answer to Count I the defendant admits that the plaintiff was injured but denies the extent of the injuries claimed.
Furthermore, the defendant states that the plaintiff was not in the exercise of due care and caution for his own safety at the time of and immediately prior to the occurrence and the defendant further states that the plaintiff was careless and negligent in the following respects:
Failed to keep a lookout in the direction in which the train was proceeding;
Failed to use a tail hose as provided and required by the rules in the Bicknell District.
Failed to operate the air brake in time to stop the train before it collided with a dirt embankment.
As to Count II the defendant further denies that it violated the Federal Safety Appliance Act and denies that the air brake in question failed to operate efficiently.
The trial commenced on October 30, 1957, upon Count I, based on the Federal Employers' Liability Act. On November 1, 1957, plaintiff filed an amendment consisting of an additional count based upon violation of the Federal Safety Appliance Act. When instruction No. 17 was given and the case submitted to the jury, the only answer on file was defendant's general denial, and plaintiff contends it was prejudicial error to give the instruction outlining the issues in the case and stating that defendant had filed an answer to both counts of plaintiff's complaint, notwithstanding the fact that no answer was filed to the Page 507-7 amended complaint until November 13, 1957, more than a week after the trial had been concluded. It is urged by plaintiff that since the instruction was not based on any pleading on file during trial, the judgment should be reversed.
It appears that on November 4, 1957, at the close of all the evidence, a conference was had in chambers, settling the instructions in the case. In the course of that conference, defendant's counsel indicated that he desired to file an amended answer to the amended complaint, as well as an accompanying instruction. The trial judge and the respective counsel apparently desired to bring the case to a close, and in the course of that conference Judge Crowley clearly indicated that defendant would have leave to file an amended answer in conformance with its evidence of contributory negligence adduced upon trial and which was the subject matter of the amended answer to be filed. Defendant's counsel, in the court's presence and that of plaintiff's attorney, dictated the instruction over the telephone to his secretary, and the court later gave it as defendant's instruction No. 17, while also allowing defendant leave to file, within a reasonable time thereafter twenty or thirty days its amended answer in conformity therewith. The language of the instruction is substantially identical with the amendment to the answer filed on November 13, 1957. Plaintiff's contention that no order was entered granting leave to amend, was fully argued before the trial judge in connection with his certification of the proceedings. The result of that discussion is reflected in the following certification:
The Court: Let us have one thing at a time. With respect to that the Court knows that the Court did give them leave to file an amended answer on November 4th, the answer to be filed subsequently thereto, and the Court instructing specifically on the answer being set forth to the jury, the contents of the answer. And Page 507-8 the Court will order that the report of proceedings contain a recitation to the effect that the Court granted permission to file an amended answer in accordance with the instruction that was then given, setting forth the defense as claimed by the defendant.
Predicated on this background, plaintiff's contention is that there was no order of court, that the report of proceedings is contrary to the concept that defendant was given leave at that time to file an amended answer; and plaintiff's counsel argues that obtaining leave to amend a pleading is not equivalent to an amendment, and that until the pleading is amended it remains in the same state as though no leave had ever been given. He cites and primarily relies on Wisconsin Central R. Co. v. Wieczorek, 151 Ill. 579, and Landt v. McCullough, 206 Ill. 214. However, both these cases were later discussed and distinguished in Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, wherein the court stated that the rule adopted in most jurisdictions in this country was to the effect that where a motion to amend has been granted but no amended pleading appears in the judgment roll, it may be treated, on appeal, as if actually made. "Counsel for plaintiff in error," said the court, "relies on the rulings of this court in Wisconsin Central R. Co. v. Wieczorek, 151 Ill. 579, Landt v. McCullough, 206 Ill. 214, and like cases, in which objections were made to the introduction of certain evidence on the ground of variance between the allegations and the proof, leave being given to amend but no amendment being actually made. This court held that there was a variance between the allegations and the proof, and the amendment could not be considered as having been made on the record in those cases. There is nothing to show in those cases that the parties proceeded as if the amendment had been actually made, as they did in this case. We do not think the ruling in that class of cases is controlling Page 507-9 here. The amendment here was actually offered and is in the record. It did not in any way change the character of the proof, either for plaintiff or defendant." In Howard v. Reith, 243 Ill. App. 450, suit was brought before a justice of the peace in the name of one partner to collect a debt alleged to be due to the firm of which he was a member. On appeal to the circuit court, where there was a trial de novo, defendant, at the close of plaintiff's evidence, requested a peremptory instruction on the ground that there was a non-joinder of a necessary party plaintiff. The court granted leave to join the other partner as a coplaintiff and overruled the motion for a directed verdict. Defendant contended that, even if the court had authority to allow the amendment, it was never actually made, and for that reason the judgment in ...