APPEAL from the Appellate Court for the First District;
heard in that court on appeal from the Circuit Court of Cook
County; the Hon. WILBERT F. CROWLEY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1960.
This court has granted plaintiff, Kenneth W. Pinkstaff, leave to appeal from a judgment of the Appellate Court, (23 Ill. App.2d 507) affirming a circuit court judgment entered on a jury verdict awarding plaintiff damages against his employer, the Pennsylvania Railroad Company, in the amount of $50,000 under the Federal Employers' Liability Act and the Federal Safety Appliance Act.
The essential issues involve the propriety of defendant's "theory of the case" instruction referring to plaintiff's alleged negligence in connection with his action under the Federal Employers' Liability Act, and the propriety of the court's post-trial orders authorizing defendant to amend its answer, and dismissing plaintiff's charges of defendant's misconduct at the trial.
We shall summarily review the circumstances and sequence of events insofar as they bear upon these issues. On March 29, 1955, at about 12:30 P.M., defendant's switching crew was bringing some empty hopper cars into Mine 32 of the Maumee Coal Co. at Linton, Indiana. Near the mine there is a thirty-foot-high tipple which conveys coal into the railroad cars. There are three tracks running north and south which converge about five car lengths south of that tipple, so that only one track is used for loading coal at the tipple. As the tracks proceed southward from the tipple they run upgrade to a clay embankment located at the south end of the tracks. The embankment is about four feet high. From this south end of the tracks the empty cars are allowed to roll downhill one at a time to be loaded at the tipple. The cars are each approximately 45 feet long and about 15 feet high.
At the time of the accident, the empty cars were being backed up southward from the switch onto track 1, with the locomotive at the rear. Plaintiff, Kenneth Pinkstaff, the rear brakeman, was riding on top of the leading car the one most distant from the engine in order to relay signals to the crew to control the movement of the train. According to plaintiff's testimony, Waggoner, the head brakeman, who was a replacement member of the crew, was not in his proper place, which was some seven or eight cars back from the engine and on top of the cars in position where he could see plaintiff and relay his signals to the engineer. Waggoner apparently left the train when it stopped for the switch to be thrown.
Plaintiff testified that when the lead car on which he was riding was about ten car lengths from the south end of the track, he gave a "steady" signal, and when the car was about eight car lengths from the embankment he gave a "stop" signal. Nevertheless, the train continued to proceed southward at five or six miles per hour. Plaintiff thereupon realized that his signals were not being relayed to the engine crew, and he went down the ladder on the end car to apply the air brakes. While holding onto the ladder at the base with one hand, he "hit the air," or opened the angle cock, causing the air to be released simultaneously on each of the cars, including the engine, in an effort to stop the train. He further stated that when he opened the angle cock the lead car was about three car lengths from the embankment at the end of the track. In his opinion as an experienced railroad man, with 26 hopper cars in the cut moving about five miles an hour, the train should stop within 50 or 60 feet when the angle cock is opened on the end car, so that there was ample time for the train to stop before reaching the embankment. Nevertheless, the train did not stop, but continued southward to strike and break the embankment, crushing plaintiff between the car and the embankment.
There is some conflict in the record as to how far from the embankment the train was when plaintiff went down to set the angle cock, since the conductor stated that the lead car was then "at least two car lengths from the embankment." Under such circumstances, there would not have been sufficient time for plaintiff to climb down the 15-foot car, set the angle cock, and for the brakes to operate before the train would reach the embankment at the rate of speed it was traveling. There was also a conflict as to whether the customary method of stopping trains in this operation was by hand signals relayed to the engineer, as plaintiff testified, or whether there were several methods, depending upon the conditions of the hill, as defendant's witness testified. The evidence was conflicting also with respect to whether plaintiff was required to use a tail hose to open the angle cock. Pinkstaff's testimony that he had never used an air hose on this job was corroborated by the conductor, Edwards, who also stated that there was no tail hose in the caboose at the time. The road foreman, Weirman, however, testified that shortly after he assumed his duties, he had issued a bulletin on March 16, 1952, which was displayed in the engine house at Bicknell, Indiana, requiring crews setting empty cars at the mines to use a tail hose. There was also a reference to a provision relating to the use of special equipment for opening the angle cock on moving cars, in the book of safety rules.
On the basis of substantially the foregoing evidence, along with evidence of the nature and extent of plaintiff's injuries and the stipulation of his earnings, the jury awarded plaintiff damages of $50,000. Plaintiff thereupon submitted various post-trial motions. He moved to strike defendant's amended answer, filed over a week after the conclusion of the trial, and also for a new trial. He alleged, among other things, that certain instructions were erroneous; that plaintiff had since learned that defendant's witness Weirman was guilty of perjury in his testimony respecting the issuance of the bulletin in 1952; that defendant failed to comply with a subpoena respecting salaries paid the men on the Martinsville job, even though the records were available, and after agreeing to produce the records, later objected to their introduction in evidence; and also that defendant failed to abide by a compromise offer and accord.
In support thereof, affidavits were submitted by plaintiff and his counsel. Plaintiff attested that Burge, a clerk employed by defendant, informed plaintiff that he had made a search of the records at Bicknell, at the request of defendant's claim agent during the pendency of the trial, to find any bulletins issued by Weirman requiring the use of a tail hose, and that he found only a bulletin dated the day of the accident. Burge further told plaintiff that he brought the bulletin to the engine house foreman to take to the trial, and that this information was available to defendant before Weirman testified. These attestations were supported by Burge's post-trial deposition. The trial court denied plaintiff's motion charging defendant and its counsel with misconduct during the trial.
In connection with plaintiff's post-trial motion to strike defendant's amended answer, our attention is directed to the circumstances surrounding the authorization of the pleading amendments. From the partially recorded colloquy between the court and counsel, it appears that while plaintiff originally predicated his action on the Federal Employers' Liability Act, and went to trial on October 30, 1957, on that count, he was allowed to amend his complaint to add a count alleging defendant's violation of the Federal Safety Appliance Act in furnishing defective air brakes. There was some discussion on November 1, 1957, about allowing defendant's answer to stand as a denial to the additional count, and also of giving it 20 to 30 days to answer. There was also discussion of defendant amending its answer again on November 4, 1957, at the conference in chambers settling the instructions. At that time the trial court rejected plaintiff's original "theory of the case" instruction which set forth at length his own contentions and concluded with a statement that defendant denied such allegations. The court allowed defendant to submit its own "theory of the case" instruction the controverted No. 17 which recited that defendant filed an answer alleging that plaintiff was contributorily negligent in certain respects in connection with the Federal Employers' Liability Act action, and denying any violation of the Federal Safety Appliance Act.
In reliance on that instruction as a memorandum, and on the fact that the precise answer referred to therein was filed by defendant on November 13, the trial court ruled some eight months later that it had granted defendant leave to amend the answer on November 4, otherwise it would never have given the instruction. Consequently, the court certified the record to recite that leave to amend the answer had been given, and denied plaintiff's motion to strike the amended answer.
The Appellate Court affirmed the trial court's judgment and rulings, and we have granted plaintiff leave to appeal in order to clarify the law respecting such instructions and to ...