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D. C.]

Opinion of the Court.

of its

Birmingham R. Light & P. Co. 153 Ala. 95, 16 L.R.A. (N.S.) 467, 45 So. 151; Chunn v. City & Suburban R. Co. 207 U. S. 302, 52 L. ed. 219, 28 Sup. Ct. Rep. 63. Moreover, it is not open to question in this jurisdiction that it is the duty of a carrier to exercise the highest degree of care for the safety passengers, not only when in the act of alighting, but until after such reasonable period of time as would permit them to get into a place of safety. Capital Traction Co. v. Lusby, 12 App. D. C. 295; Great Falls & O. D. R. Co. v. Hill, 34 App. D. C. 304. It would be a curious rule that would hold guiltless a carrier where, as here, in the absence of contributory negligence, it had negligently injured a passenger before he had gotten away from the car from which he alighted.

Defendant requested the court, which request was refused, to instruct the jury, as matter of law, that if they should find that the plaintiff, when about to alight from the car he was riding in, saw, or by the exercise of reasonable care and prudence could have seen, that immediately to the east of that car was another track, "and that it was dangerous to alight on that side, and also saw, or by the exercise of reasonable care and prudence could have seen, that the depot and waiting room of the defendant was on the west, and that there were no tracks of the defendant upon that side, and that it was not dangerous to alight upon that side, and that, with such knowledge, he nevertheless attempted to and did get off from the east side of said car, and that under all the circumstances of the case his action in so doing was negligence which contributed toward the injuries complained of," their verdict should be for the defendant. This prayer was not applicable to the facts before the jury. The evidence showed that the plaintiff alighted from the side from which other passengers were alighting; that the only car to the east was at rest, without anything to indicate that it would move or be moved. In short, so far as the evidence discloses, there was nothing to indicate to the plaintiff that it Was dangerous to alight from the east side of the car. The Court instructed the jury, however, at the request of the defendant, that even though they should find "that the defend

Opinion of the Court.

[43 App.

ant was guilty of negligence, yet if they further find from the evidence that after the plaintiff alighted from the car on the west track he saw, or by the exercise of reasonable care and prudence could have seen, the car on the east track approaching him, in time to get back upon the car he alighted from before being struck, and that he failed to do so, and that his failure to do so was negligence which contributed toward the injuries sustained by him," their verdict should be for the defendant. This charge was more favorable to the defendant than the evidence really warranted, for the uncontradicted evidence was to the effect that the plaintiff did not have time to get out of the way of the approaching car after he saw it, or by the exercise of reasonable care and prudence could have been expected to see it approaching.

At the request of the defendant the court instructed the jury that their verdict should be based solely upon the evidence and without regard to the parties; that it would be a violation of their oaths as jurors to be influenced by, or to consider to any extent or for any purpose, the fact that the plaintiff was an individual, or that the defendant was a corporation; that it was their duty to permit neither sympathy nor prejudice in favor of or against either of the parties to have any influence upon their verdict. In the course of his argument to the jury, counsel for the defendant read this instruction, and "called the jurors' attention to the fact that they were on oath sworn to try the case on the evidence alone." During his closing argument, counsel for the plaintiff commented on this argument of counsel for the defendant, and alluded to the fact that counsel for the defendant had prepared the instruction. Plaintiff's counsel then proceeded further as follows: "As though the jury did not know they were under oath to try this case upon the evidence; as though the jury were going to forget their oaths as jurors." Thereupon counsel for the defendant moved the discharge of the jury. The court overruled the motion, admonishing counsel for the plaintiff to be "temperate in his argument." The overruling of this motion forms defendant's last assignment of error.

D. C.J

Syllabus.

While it was error for counsel to comment upon the fact that defendant's counsel had prepared the instruction in question, for the obvious reason that, the instruction having been granted, it became the law of the case, and counsel preparing it were not subject to criticism for so doing, we do not think the error was so prejudicial as to justify the extreme measure suggested. Counsel for both parties urge upon the jury not to forget their oaths as jurors, and to decide the case upon the evidence. Under the circumstances, we think the motion should have been that the jury be instructed to disregard the objectionable remarks, and not that it be discharged. In the absence of such a motion, we think the court's admonition to counsel for the plaintiff was sufficient.

Judgment affirmed, with costs.

Affirmed.

ROZER v. MAY.

APPEAL AND ERROR; RECORD.

A decree will, on appellee's motion, be affirmed upon appeal, where the statement of the evidence in the case has been stricken from the record by order of the court, since the evidence upon which the cause appears to have been heard in the court below, not being in the record, must be presumed to have supported the decree.

No. 2749. Submitted December 14, 1914. Decided January 4, 1915.

HEARING on motion to affirm a decree striking from the record the statement of the evidence.

Affirmed.

Mr. L. A. Bailey for the appellant.

Mr. John J. Hamilton, Mr. George E. Hamilton, and Mr. John W. Yerkes for the appellee.

Syllabus.

[43 App.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

The statement of the evidence in this case having heretofore, by order of the court, been stricken from the record, the appellee, Henry May, moved to affirm the decree.

It appears that the cause was heard in the court below upon evidence in support of the bill and answers. Not being in the record, it must be presumed that it supported the decree. The decree is therefore affirmed, with costs.

Affirmed.

TAYLOR v. WHARTON.*

ATTORNEY AND CLIENT; EQUITABLE LIEN; APPEAL AND ERROR.

1. A contract whereby a client agrees to pay his attorney a retaining fee and a "further fee of 15 per cent upon the amount recovered" does not amount to an appropriation of the fund by the client to the extent of the percentage specified, so as to give the attorney an equitable lien upon the fund when recovered, but merely establishes the amount which the attorney is entitled to receive from the client upon the settlement of the claim. (Following Thurston v. Bullowa, 42 App. D. C. 18.)

2. Where this court, under a misapprehension of the lower court's ruling, granted a special appeal, and thereafter reversed the decree appealed from, and it was shown on a motion by the appellee for a rehearing that the decision of the lower court was in effect in harmony with the decision of this court, the appeal was dismissed.

No. 2734. Submitted November 2, 1914. Decided February 1, 1915.

*Attorney-Lien-Percentage of Recovery. As to the right of attorney who takes case on contingent fee or for certain percentage to implied or equitable lien on fund recovered, see note to De Winter v. Thomas, 27 L.R.A. (N.S.) 634.

D. C.]

Statement of the Case.

HEARING on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia overruling a motion to dismiss a bill in equity to establish an equitable lien against a certain fund in the hands of an administrator.

Reversed.

The COURT in the opinion stated the facts as follows:

This is a special appeal from an order in the supreme court of the District, overruling a motion to dismiss appellees' bill.

The facts set forth in the bill material to the disposition of this appeal are as follows: Stanhope Prevost, a citizen of the United States and a resident of Lima, Peru, died at the latter place between 1868 and 1870. For many years prior to his death he had been a partner in the commercial firm of Alsop & Company, doing business in Chile. Following the death of Prevost his estate, represented by his son and executor, Henry S. Prevost, now deceased, retained an interest in said firm. In the year 1885, when Alsop & Company had been in liquidation for a number of years, there still remained outstanding a large claim against the governments of Bolivia and Chile. In this claim the estate of Stanhope Prevost had a substantial interest. The management of the claim had for many years been intrusted to John Wheelwright, now deceased, who was the recognized representative of the partners of Alsop & Company. In this work he was assisted by Henry S. Prevost, the then executor of Stanhope Prevost. Wheelwright, acting with the full knowledge and approval of Henry S. Prevost, entered into a contract with George S. Boutwell, of whose estate appellee William F. Wharton is the administrator, to take professional charge of said claim on behalf of the interested parties. The terms of this employment were arranged through correspondence. In a letter dated April 1, 1885, Mr. Boutwell stated that he would be willing to undertake the prosecution of the case upon the following terms: A retainer of $1,000, current funds of the United States. If a recovery should be had by arbitration in the United States "a further fee of 15 per cent upon the amount

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