St. Louis, Iron Mountain & Southern Railway Co. v. Blaylock

Wood, J., (after stating the facts). We will discuss the assignments of error in the order presented in appellant’s brief. I. (1-2- 3) The court did not err in overruling appellant ’s motion to dismiss the cause and in refusing to make the firm of Jackson and Jones parties. Our statutes provide that the compensation of an attorney for his services is.govemed by agreement express or implied, which is not restrained by law, and that for such compensation, “from' •the commencement of an action, ‘the attorney * * * has a lien upon his client’s cause of action, * * * which attaches to a verdict, report, decision, judgment o,r final order in his client’s favor, and the proceeds thereof in whosesoever hands ■ they may come. ’ ’ They also provide how the lien shall be perfected and enforced. Act 293, Acts of 1909. Sections 4458 and 4462, Kirby’s Digest. These statutes do not make the attorneys' either necessary or proper parties to the lawsuit. While they have a lien on their client’s cause of action “which attaches to a verdict, judgment, etc., and the proceeds, thereof, into whose-soever hands they may come,” this lien does not give the attorney any interest in the cause of action, itself, or iany control over the cause of .action. The parties to the litigation must necessarily control the proceeding 'affecting their respective interests until the lawsuit is ended. The attorney, under the statutes, has a lien for his fee which can not be def eated by iany settlement of the parties litigant before or after judgment or final order. The attorney has no right to compel his client to continue litigation. A client may dismiss his cause of action or may settle with the opposite party without consulting his attorney, but where there are any proceeds, resulting from the litigation, either through settlement or compromise, or as 'the final result of the prosecution of the lawsuit to the end, the attorney has a lien on such proceeds of which he can not be deprived by the parties to the lawsuit by any settlement they may make. This is as far as the attorney’s rights go. Of course, under section 4457, Kirby’s Digest, where the parties compromised, the attorneys for the respective parties had a right of action “against both plaintiff and defendant for .a reasonable fee to be fixed by the court or jury trying the case. ’ ’ See Rachels v. Doniphan Lumber Co., 98 Ark. 529; K. C., F. S. & M. Ry. Co. v. Joslin, 74 Ark. 552; Fordyce v. McPhetridge, 71 Ark 327; Rush v. Prescott & N. W. Ry. Co., 83 Ark. 210. In Davis v. Webber, 66 Ark. 190, we quoted from Judge Dillon in Ellwood v. Wilson, 21 Iowa 523, as follows : ‘‘ The law encourages the amicable adjustment of disputes and the construction of a contract which would operate to prevent the client from settling will not ‘be favored,” and from Lewis v. Lewis, 15 Ohio 715, as follows: “A contract with an attorney to prosecute a suit containing a stipulation that the parties should not have the right to settle or discontinue it without the assent of the attorney, would be so much against public policy that the court would not enforce it.” The relation of the attorney to his client, so far as not having an interest in the pending cause of action (giving him the right to be heard on the prosecution thereof) is the same now as it was at the time the .above decision was rendered. Giving the .attorney a lien on Ms .client’s canse of action, which entitles him ‘to have the compensation for his services paid out of the proceeds of whatever disposition the client makes of his cause of action, whether by settlement or final judgment or order, is quite a different tMng from giving the attorney an interest in the cause of action itself, or the right to have any voice in the disposition of such muse of action. Section 2 of Act 293, Acts 1909, supra, provides ■that “the court before which said action was instituted or in which said action may be pending at the time of settlement, compromise or verdict upon the petition of client or attorney shall determine and enforce the lien created by this act.” (4) Jackson and Jones, attorneys, are not asking to be made parties to the litigation, and if they were, it could not be done. Certainly, if appellant .could have them brought into the lawsuit at .all under the statute, it would have no right to do so in advance of the verdict or final order or judgment. If Jackson and Jones, under a contract with the appellee before the present suit was begun, instituted suit for him in the Saline Circuit Court on the same cause of action as the present suit, the only concern that the appellant could have under the statute would be to see that the proceeds of the judgment in appellee’s favor were not paid over to him until it should be determined whether or not Jackson and Jones had a lien upon such judgment; that is a matter entirely collateral and foreign to this suit between the appellee and .appellant, in which the only issue involved is whether or not the appellee should recover damages for the personal injuries which he alleges were caused by the negligence of appellant. II. (5) The court 'did not err in overruling the motion of appellant to exclude the testimony of witnesses Erickson and Countryman. Witnesses on behalf of appellant had testified that under the blue flag rule when minor repairs were being made on cars in the yards outside of the rip track, the men were required to protect themselves by a blue flag; that “when a man went out in the open yard where work is to be done under a oar, they put out a blue flag;” that the rule as thus interpreted was “generally known among the workmen,” .and “generally and regularly observed by them, ’ ’ under this rule it was Blaylock’s duty to put out the blue flag. The testimony of witnesses Erickson and Countryman was strictly in rebuttal of the above testimony, as it tended to show a different interpretation of the rule—that is, that “where a steel oar man takes his two helpers .and goes out in the yards” (off of the rip tracks) “to perform work under a oar it is the foreman’s duty to put out a blue flag,” and that it was ■the custom to observe the rule as thus interpreted. Counsel for appellant suggest as one reason why the testimony of witness Erickson was incompetent was the fact that he left the company’s service two years before the accident occurred, but this reason was not made a ground in the motion to exclude as set forth in appellant’s abstract; and appellant having specified the reasons for exclusion in its motion must be deemed to have waived other reasons not mentioned. See Timothy J. Foohey Dredging Co. v. Mabin, 118 Ark. 1. (6) Furthermore, the testimony of witnesses Erickson and Countryman was competent. It did not tend to vary or contradict the rule itself, but only tended to show the construction placed upon the .rule and the manner of its enforcement by those who were charged with that duty. The rule required “workmen” to “display” and the same workmen to “remove” the blue signals. When the men were working in “gangs” out in 'the yards (off the rip tracks), the rule was obeyed, according to the testimony of Erickson and Countryman, when the foreman put. out the blue flag. III. (7-8) The effect of instructions Nos. 1 and 2 granted at appellee’s request, were to tell the jury that if appellee was at work in the discharge of his duties under a car, and that while so engaged, defendant’s servants ran a car over Mm .and injured him, this would be prima facie proof of negligence that would wíurrant a verdict in bis behalf, provided he was not guilty of contributory negligence, and that such facts being established by the evidence, the burden was then upon the appellant to show that the injury was not caused through negligence on its part. The appellant contends that the instructions were erroneous for the reason that the presumption of negligence under the statute (Kirby’s Digest, § 6773), does not apply in this ease because the proof is that the injury was not produced through the negligence of those servants of appellant who were running the train. The statutory presumption applies to all employees of railway companies who receive injuries by the running of trains, except those employees who are, themselves, engaged in the actual running of the train which causes the injury. K. C. So. Ry. Co. v. Cook, 100 Ark. 476. The statute is comprehensive and its purpose is to shift the burden of proof to the railway company to show that 'the injury was not caused through its negligence in all those cases where it is alleged and proved that the employee (not engaged in the running of the train), received his injuries by reason of the running of such train. Here the appellee alleged that “defendant’s switchmen, without notice to plaintiff, negligently shoved oars upon the track where he was engaged at work, striking the car that was being repaired and running it over him,” and he proved that his injury was produced by the running of appellant’s train—that is, that the switch crew ran the oars against the car under which appellee was working, knocking same over him. These allegations and this proof were sufficient to entitle -appellee to invoke the statutory presumption and to place the burden of proof upon appellant to show that the injury was not caused through its negligence. See St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 207; St. Louis, I. M. & S. Ry. Co. v. Graham, 83 Ark. 61; St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275. Appellant also contends that the first instruction ignored the defense of assumed risk, but if it be conceded that appellant, under the evidence, was entitled to this defense, it got the benefit of it in other instructions given at the instance of the appellee, and also in instructions given at the instance of the appellant. For instance, appellant’s prayer No. 16, is as follows: ‘ ‘ 16. You are instructed that where a person enters into an employment, he assumes all the risks and hazards ordinarily incident to such employment, and he will he presumed to have contracted with reference to such risks and hazards. He assumes all the risks, and hazards he knows to exist, or by the exercise of ordinary care he should know to exist in the performance of the duties he engages himself to perform. So, if you believe from the evidence that the plaintiff was injured by one of the risks ordinarily incident to his employment, then your verdict should be for the defendant. ’ ’ (9) Where the instructions separately present every phase of the law, ‘ tas a harmonious whole, ’ ’ there is no error in each instruction failing to carry qualifications which are explained in others. St. Louis, I. M. & S. Ry. Co. v. Graham, supra, and cases cited. IV. The court granted appellee’s prayer No. 9, in effect telling .the jury that if appellee did not know of the blue flag rule he would not be bound by such a rule, and at the instance of the appellant, the court in prayer B instructed the jury, in effect, that if appellee knew, or by the exercise of ordinary care on his part could have known, of the existence of such a rule, and that he negligently failed to obtain such knowledge, or, having obtained same, violated the rule and was injured on account thereof, he could not recover. The appellee testified that he could read a little, that when the employees went to work they were furnished each day with a time card on which they were expected to keep their own time. In one corner of this card was printed in small type the following : “If your duties require you to go around, under or on cars, protect yourself with blue signals. ’ ’ Appellee testified that he carried this card around ever since he had worked there (over ¡a year), but he had never read the above print; all he knew the card was for was to put ■thereon 'his name and the number of hours he had worked, and to turn it in to the ¡cheek room when he returned from work; The testimony on the ¡part of the ¡appellant showed that the rule was generally known ¡among the repair men and helpers. Under the above testimony, the court could have very well treated the prayers for instructions submitting to the jury the issues as to whether or not the appellee had knowledge of the blue flag rule or whether he was bound to take notice of such rule, as abstract, and have refused to submit these issues to the jury. But the appellant joined with the appellee in having these issues submitted, and is, therefore, not in an attitude to complain of the ruling of the court in submitting them. The instructions, when 'Considered together, as they must be, were not in conflict, and under the rule above announced in Railway Company v. Graham, supra, instruction B granted ¡at the instance of appellant was but a qualification or explanation of instruction No. 9 given at the instance of appellee. Moreover, there was no specific ¡objection to instruction No. 9, and as an .abstract proposition of law :it was correct, whereas, appellant’s prayer for instruction B, ¡as ¡an abstract proposition of law, was erroneous. Appellant, therefore, is not prejudiced, and is not in an attitude to complain that the ruling of the court was erroneous in granting conflicting prayers for instructions, even if such were the case. (10) The effect of appellant’s prayer B was to make it the affirmative duty of the ¡appellee to exercise ordinary care to ascertain the existence of the blue flag rule. Such is not the law. In 'the recent ¡case of Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272, we said: “But it is the duty of the master, ¡as we understand the law, to make rules for the protection of the employees and to make those rules known to the employees. There is no affirmative duty devolving upon the employees to ascertain what the master’s rules are.” To be sure, it is the duty 'of the servant to exercise ordinary care for his own protection, and if the servant failed to observe the rule which the master had made and brought to his notice, or published under circumstances of which the servant was bound to take notice as in this case, then the servant might be guilty of negligence in not observing the rule. See St. Louis, I. M. & S. Ry. Co. v. Webster, 99 Ark. 265, pages 279, 280. Mr. Labatt 'says: “Both on principle and authority, it is manifest that insofar as the servant’s contributory negligence is predicated merely from his f ailure to perform the duty prescribed iby rule, he must be shown to have hud knowledge of it before he can be held culpable on the ground of his not having obeyed it.” 3 Labatt’s Master and Servant, page 2992, 'section 1132. And numerous authorities cited in note. V. This assignment of error has been abandoned. VI. (11) Appellant’s prayer for instruction No. 14, as modified and given,* was not correct as asked. If the rule for the employees ’ protection had been habitually violated by the employees for so long a time, with the knowledge and acquiescence of those servants of appellant whose duty it was to enforce the -rule or report any infraction’s thereof, as to establish the 'custom, of violating ■the rule, and to thus bring home to the appellant knowledge thereof, this would constitute an abrogation of the rule, regardless of whether the servants 'charged with its enforcement affirmatively or expressly consented or acquiesced or not. Their silence after knowledge of an habitual violation of the rule, so as to show a custom to violate it, would be sufficient to constitute an abrogation of the rule. St. Louis, I. M. & S. Ry. Co. v. Sharp, and cases therein cited. (12-13) Appellant invited the error of the modification made by adding the word “negligently” to the instruction ; for in one of its rejected prayers, appellant had requested the court to tell the jury, in effect, that if the blue flag rule existed and was known to appellee, and appellee “negligently, and in violation of said rule, went under the car and was injured on account thereof, he could not recover.” Appellant presented the above prayer and the same was at first refused, and appellant duly objected and excepted to the ruling of the court in refusing the same. Appellant could not thereafter object to a ruling which it had at first invited, without some affirmative showing in the record that it had abandoned and withdrawn its objection to the court’s ruling rejecting the prayer when first offered. A party will not be allowed to take inconsistent or double positions nor “play fast and loose,” so to speak, with the rulings of the court. In the motion for a new trial, appellant assigns as error the refusal of the court to give its prayer No. 8; it also assigns as error the refusal of the court to give its instruction No. 14 as requested, and in “modifying and giving the same as modified. ’ ’ Thus the appellant, on the face of the record, is in the attitude of saying to the trial court: “You erred because you refused my instruction when I first asked it, 'and then you afterward erred because you, in effect, granted the request I first made.” This comes within the well established principle often announced by this court, that a party will be held to have waived the error in a court’s ruling which he invited the court to make. Fort Smith Light & Traction Co. v. Barnes, 80 Ark. 169. See, also, St. Louis & S. F. Ry. Co. v. Vaughan, 88 Ark. 138; Little Rock & Monroe Ry. Co. v. Russell, 88 Ark. 172; St. Louis, I. M. & S. Ry. Co. v. Thurman, 110 Ark. 188; Little Rock Railway & Electric Co. v. Bracy, 111 Ark. 613. VII. In instruction No. 10, the court, in effect, told the jury that if appellee was injured because of his failure to observe any of the rules of the company given him for his own safety, he would be guilty of contributory negligence, unless the jury found that in violating said rules, he was acting under directions of a foreman or some other employee of the railway company under whom he ■was working and who had authority to direct his work, in which case it was a question for the jury to determine whether the appellee was guilty of contributory negligence, considering all of the facts and circumstances causing the injury. (14) The appellant contend s that it was the duty of the appellee, under the blue flag rule when he went to do the work where he was injured, to put out the blue flag to protect himself, that the rule required this, and that the fact that he was working at the time under the directions of Vance, who, as appellee testified, was foreman of the. gang, ¡and wham he was expecting to protect him, made no difference. The effect of the contention is that the court should have instructed the jury, as a matter of law, that appellee was violating . a rule of the company made for his protection, and in so doing was guilty of contributory negligence and assumed the risk of the injury which he received. But we are of the opinion that under the evidence it was a question of fact for the jury as to whether -appellee was guilty of contributory negligence, and whether he assumed the risk, and that these issues were fully and properly submitted to the jury by the instructions which the court gave. The rule was -ambiguous ■and the testimony shows clearly that -those whose duty it was to enforce the same placed different interpretations upon the rule. There was testimony on behalf of the appell ant tending to show that the rule was interpreted by the employees to mean that it was the duty of each workman when engaged in work such as appellee was doing at the time of his injury to put out the blue flag. On the other hand, the testimony on behalf of the .appellee tended to show that the rule was interpreted by those whose duty it was to enforce the same to mean that it was the foreman’s duty to protect the men under his immediate charge by putting out the flag. The appellee testified to facts which warranted the jury in finding that at the time of his injury he was doing his work under the dir ection of a foreman. One of his witnesses testified that “in the case of a.steel car gang foreman who leaves the track and goes out in the yards to work on oars, it is the duty of the man in 'charge to protect the track. ’ ’ See St. Louis, 1. M. & S. Ry. Co. v. Puckett, 88 Ark. 204. With the rule thus susceptible of 'different interpretations, and with different interpretations put upon it by those who were charged with its immediate enforcement, the court correctly 'submitted the issue, as to whether appellee was guilty of contributory negligence and whether or not he had assumed the risk. (15) The language of the rule is that “workmen will display the blue signals and the same workmen remove them.” This term “workmen” is indefinite, for it was shown that the foreman—that is, the steel ear man who took his two helpers and went out in the yards to perform work—was a workman. “An ambiguous rule,” says Mr. Labatt, “promulgated by a corporation for the government of its employees in a dangerous service should generally be taken in its stronger sense against the corporation and in favor of the employee. * * * Where the consequence of holding a given rule valid will be to disable ,an employee from recovering damage on the ground that he violated its provisions, the courts very properly apply the principle that rules are to be strictly construed against the master.” (3 Labatt, Master and Servant, pages 2968 and 2969.) YIII. What we have already said disposes of appellant’s contention that the evidence is not sufficient to sustain the verdict. We find no reversible error, and the judgment is, therefore, affirmed. Hart and Smith, JJ., dissenting. Footnotes [*] No. 14 (As Requested). Even if you believe from the evidence that the rule which required workmen to put out a blue flag to notify that they were at work under a car was frequently or habitually disregarded by the workmen in the Argenta yards, still, if you also believe from the evidence that the defendant did not consent to such disregard of the rule, and did not acquiesce therein, then the plaintiff is not excused in law for the violation of the rule, and if he was hurt while violating it, and on account thereof, your verdict should be for the defendant. No. 14 (As Modified). Even if you believe from the evidence that the rule Which required workmen to .put out a blue flag to notify that they were at work under a car was frequently and habitually disregarded by the workmen in the' Argenta yards, still, if you also believe from the evidence that the defendant did not consent to such disregard of the rule and did not acquiesce therein, then the plaintiff is not excused in law for the violation of the rule, and if he was hurt while negligently violating it, and on account thereof, your verdict should 'be for the defendant.