Ward v. . Bowles , 228 N.C. 273 ( 1947 )

BarNhill, J.

On this record plaintiff was lawfully in the intersection, standing in a position where he was clearly visible to the driver of the defendant’s taxicab as the latter approached the intersection. The taxi driver, had he been keeping a proper lookout, could have seen him in ample time to avoid a collision. Instead he “cut the corner” in violation of G. S. 20-153 (a) without giving any signal or warning of his approach. The collision resulted. These circumstances, unrebutted as they are on this record, warrant an inference of negligence and are sufficient to require the submission of appropriate issues to the jury.

The defendant Bowles, it is true, was at the time driving on a green light, but that fact did not relieve him of the duty to exercise proper care for the safety of a pedestrian who had lawfully entered and was standing in the 'intersection when he approached.

The facts are not such as to require or permit the conclusion that plaintiff was guilty of contributory negligence as a matter of law.

There is no evidence that either plaintiff or his employer had given notice of non-acceptance of the Workmen’s Compensation Act, G. S. Chap. 97, under the terms'of G. S. 97-4. It must be presumed, therefore, that both the City of High Point and the plaintiff at the time of the accident were bound by the provisions of that Act. G. S. 97-3. The plaintiff, at the time he received his injuries, was engaged in the discharge of his duties as a police officer of said city. He never filed any claim for compensation against the city. These facts, the defendants contend, preclude plaintiff from instituting any action against them and support the judgment of nonsuit entered in the court below.- The contention is untenable.

When an employee and his employer have accepted the provisions of the Workmen’s Compensation Act, the rights and remedies respecting compensation for personal injuries received while about his master’s business, granted the employee by the Act, are exclusive as against the employer only. G. S. 97-10. A third-party tort-feasor is subject to suit even though compensation is,paid or liability therefor is acknowledged by the employer. G. S. 97-10. While the rights of the employee, as against a third party after claim for compensation is filed, are limited, G. S. 97-10, there is nothing in the Act which denies him the right to waive his claim against his employer and pursue his remedy against the alleged tort-feasor by common law action for negligence.,

Thé fact that the plaintiff may have been insured against the defendants’ negligence, either directly or by virtue of the statute, is of no protection to the defendants from suit for their alleged wrongful act’.

The judgment below is

Eeversed.