St. Louis, I. M. & S. Ry. Co. v. Blaylock

• Decision Date: 29 March 1915
• Docket Number: (No. 280.)
• Citation: 175 S.W. 1170
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BLAYLOCK.
• Court: Arkansas Supreme Court

175 S.W. 1170

ST. LOUIS, I. M. & S. RY. CO. v. BLAYLOCK.

(No. 280.)

Supreme Court of Arkansas.

March 29, 1915.

Appeal from Circuit Court, Lonoke County; Eugene Lankford, Judge.

Action by D. P. Blaylock against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff was employed by the defendant as a laborer and commenced work on the rip track in November, 1911. The rip track is the place where they put bad-order cars for repairs; there are a number of these tracks at the Argenta yards, all in a body. Plaintiff was what is known as a "steel car helper," and on the morning of September 3, 1913, while in the performance of his duties, he received personal injuries for which he brought this suit in the Lonoke circuit court on July 9, 1914, alleging that defendant's switchmen —

"without notice to plaintiff, negligently shoved cars upon the track where he was engaged at work, striking the car that was being repaired and running it over him; that he was injured by reason of the negligence of his foreman in failing to notify the switchmen that repairs were being made upon the car where the injuries occurred."

He further alleged that he was exercising due care for his own safety, and that at the time was doing repair work upon one of the cars under the direction of his foreman, one Vance, who was present. He described his injuries and alleged damages in the sum of $50,000, for which he prayed judgment. The defendant moved to dismiss the cause, setting up that plaintiff, through his attorneys, Jones & Jackson, on the 16th day of September, 1913, instituted suit against defendant in the Saline circuit court to recover for the same injuries, and that said suit was still pending in that court; that at the March term of that court, the cause was continued by agreement between Jackson & Jones, attorneys for the plaintiff, and the attorneys for the defendant; that the cause under the agreement for continuance stands for trial at the next September term of the Saline circuit court; that plaintiff employed Jackson & Jones under a contract which provided that they should have a contingent fee out of the proceeds of the amount recovered; that Jackson & Jones have a vested interest in plaintiff's cause of action, and asking that Jackson & Jones be made parties, or that the cause be dismissed. The defendant, as an exhibit to its motion, filed a copy of the complaint filed by Jackson & Jones in the Saline circuit court, and also a copy of defendant's answer to said complaint. The plaintiff responded to the motion, denying its allegations; he denied that he employed Jackson & Jones, or either of them, to represent him, or that they had any right to file suit in the Saline circuit court, and denying that they had any interest in his cause of action. He exhibited with his response copy of the order of the Saline circuit court dismissing the case of plaintiff against the defendant; he also exhibited a copy of an affidavit made by him, in which he denied that he had entered into a contract authorizing Jackson, of the firm of Jackson & Jones, to represent him in his claim for damages against the defendant, and setting up that he had nothing to do with the case filed in the Saline circuit court except to cause the same to be dismissed on June 25, 1914. The defendant amended its motion to dismiss, setting up that the dismissal of the action in the Saline circuit court was without the knowledge or consent of Jackson & Jones, the attorneys representing the plaintiff in that court, and was unauthorized, and that Jackson & Jones did not dismiss their cause of action arising out of their right to a lien on plaintiff's cause of action. In support of its motion to dismiss, defendant adduced the affidavit of Jackson & Jones, in which they stated that they were employed by the plaintiff on the 16th day of September, 1913, to prosecute his claim against the defendant for damages suffered by him on the 3d day of September, 1913; that they had an agreement with plaintiff that they should receive for their fee one-half of any sum recovered in any suit brought by them for the plaintiff, and that if no suit was brought and the claim was compromised, their fee should be equal to one-third of the amount recovered by compromise; that the contract entered into between affiants and the plaintiff contained a power of attorney authorizing affiants to bring suit on plaintiff's claim against the defendant in a court having jurisdiction of the matter; that in pursuance of this contract, affiants, on the 16th day of September, 1913, instituted action for plaintiff in the Saline circuit court, where the action is still pending; that affiants had not been paid anything for their services rendered under the contract with plaintiff; that at the March term, 1914, affiants and the attorney for the defendant agreed that the cause should be continued until the September term, 1914, which was done, and that the cause stands for trial at that term, and affiants intended to prosecute the cause; that they had not authorized or participated in the bringing or prosecution of the suit in the Lonoke circuit court. On August 10, 1914, the court overruled the defendant's motion to dismiss and its motion to have W. D. Jackson and Gus W. Jones made parties plaintiff. The defendant then filed its answer, denying the allegations of the complaint as to its negligence and as to the injuries of the plaintiff, and setting up the affirmative defenses of contributory negligence and assumed risk on the part of the plaintiff. On August 13, 1914, defendant renewed its motion to dismiss the cause, alleging that since the court passed upon the former motion the plaintiff, through his attorneys Jackson & Jones, had reinstated the suit in the Saline circuit court, and it exhibited a certified copy of the complaint that was filed in the Saline circuit court, and renewing its allegations to the effect that Jackson & Jones had a vested interest in the plaintiff's cause of action, and praying that the cause be dismissed, and that it be transferred to the Saline circuit court in order that defendant might have it consolidated with the suit pending there, or that the cause be continued, in order to give the defendant an opportunity to have the Saline circuit court at its September term determine whether Jackson & Jones and the plaintiff had the right to maintain plaintiff's suit in that court. The court overruled the renewed motion of the defendant to dismiss, to which ruling exception was duly saved.

At the time the plaintiff received his injury, he had been working for defendant nearly two years. Up to that time he had never worked away from the rip tracks. When they were working on a rip track, the switches were locked. Plaintiff had nothing to do with protecting himself on the rip track. He never had a blue flag, and never used one as long as he stayed there. Plaintiff and another helper worked under one Vance as their foreman. They did such work as they were ordered to do by the foreman, and under his supervision, the three constituting what was known as a "steel car gang."

The plaintiff describes what took place on the day of his injury as follows:

"Mr. Vance told me to get my hammer and my wrench and come to this car and tighten up some draft bolts. We went alongside by these engines and found a bolt and came back together, and he told me to put this bolt in. I started under the car to put the bolt in, and Mr. Vance walked across the track and I just got my hand on this brake to do the work, and those cars came back and hit the one I was under, and it ran over me. When Mr. Vance took me out there that day and told me to go under that car and go to work, I supposed they had been protected. I looked to my foreman for my protection. I did not have any connection with the switch crew."

The testimony of the plaintiff tended further to show that one Bosshardt, who was a general foreman of the yards, directed Vance to repair certain cars that were not placed on the rip tracks where plaintiff had been working before, and where he had been protected by locked switches. The defendant introduced witnesses whose testimony was to the effect that some times repairs were made on other tracks than the rip tracks, and the workmen were protected under the following rule:

"A blue flag by day and a blue light by night displayed at one or both ends of an engine, car or train indicates that workmen are under or about; when thus protected, it must not be coupled to or moved; workmen will display the blue signals and the same workmen are alone authorized to move them, others must not be placed on the same track so as to intercept the view of the blue signals without first notifying the workmen."

This rule was "generally and regularly observed." "Under that rule as enforced and in effect, it was Blaylock's duty, upon going to work upon a car upon the storage tracks in the yards, to display the blue flag." One of the witnesses testified:

"For the last two years they have not used them [the flags] on the heavy repair tracks. They are locked."

It is customary to do such repairs as the plaintiff was doing out in the yards on other tracks besides the rip tracks; in such cases the blue flag rule is observed:

"When we go outside to make minor repairs, I think the men going out should carry a flag; that rule of putting out blue flags is generally known in the yards; it is observed among the repairers."

The plaintiff in rebuttal introduced witness J. R. Countryman who, over defendant's objection, testified:

"I am acquainted with the custom and practice with reference to putting out flags where men are at work on the cars. Under the blue flag rule where a steel car man takes his two helpers and goes out in the yards to perform work under a car, it is the foreman's duty to put out a blue flag. I have had about 24 years' experience as a...