Pridgen v. Atlantic Coast Line Railroad

Brogden, J.

Several questions of law are presented by this appeal, to wit:

1. Can an injured employee, after receiving an award for such injury from the Industrial Commission, and an insurance carrier paying such award, maintain an action for damages against an alleged tort-feasor?

2. "Were the cases properly consolidated?

3. Should the actions have been nonsuited?

4. Did the trial judge commit error in permitting counsel for plaintiff to argue to the jury that the plaintiff, Pridgen, would receive nothing unless the verdict awarded damages in excess of the amount paid by the insurance carrier ?

The first question must be answered in the affirmative. Brown v. R. R., 202 N. C., 256; Phifer v. Berry, 202 N. C., 388. In the Brown case, supra, the Court said: “It is also provided by the statute that where an insurance carrier has paid the compensation awarded to the injured employee, or to his personal representative, the insurance carrier shall have the same right to maintain an action against the third person, as that conferred by the statute on the employer. In either case, the action is prosecuted not in behalf of the injured employee, or of the persons who are designated as beneficiaries of the recovery, under 0. S., 160, but in behalf, primarily, of the employer or of the insurance carrier. The amount recovered is applied first to the reimbursement of the employer or of the insurance carrier for such sums as may have been paid by either of them to the employee or in case of his death to his personal representative. Only the excess, if any, is payable to the injured employee, or to such persons as may be entitled thereto.” That is to say, the injured employee has no cause of action for the identical amount awarded and paid to him by the employer or insurance carrier, but'if the damages exceed the identical amount so paid, the injured employee, or his personal representative in the event of death, is entitled to receive the excess. Moreover, in the case at bar in the ninth paragraph of the complaint the carrier alleged .that it was only entitled to recover the amount actually paid by virtue of the award, and that any excess should be paid to the plaintiff, Pridgen. In effect, such allegation declares that the carrier is bringing the suit for its own benefit for the amount expended by it under the award and for the benefit of Pridgen for the excess. The defendant does not demur to the complaint or to said allegation, but calls upon the plaintiff in the action “to disclose to the court the amount that it is now paying the plaintiff, Henry Pridgen, in compensation for loss of services and the total amount of compensation which it is legally required to pay.” Consequently, the defendant acquiesced in and adopted the theory of liability set up in the complaint.

The second question is also answered in the affirmative. Both cases grew out of the same injury and practically the same defenses were interposed. The general subject of consolidation is discussed by McIntosh North Carolina Practice and Procedure, pp. 536 and 539. In illustrating the application of the principle of consolidation, the author says: “When two or more plaintiffs brought different actions against a railroad for damages growing out of the same negligent act, the actions were consolidated for convenience of trial,” etc.

The third question must be answered in the negative. The defendant insists that the evidence of the jflaintiff discloses beyond question that when the plaintiff reached the side track he had an unobstructed vision of more than a mile, and that notwithstanding such unobstructed vision, he moved on across the track for more than fifty feet to the main line track where the injury occurred. If nothing else appeared, the position of defendant would be sound and the plaintiffs ought to go out of court by virtue of application of the principles announced in Eller v. R. R., 200 N. C., 527, 157 S. E., 800, and the line of cases of which that case is typical. But something else does appear. There is evidence that the defendant was backing cars over the crossing in the night time without a light thereon or a watchman or flagman to give warning. Moreover there was evidence that the train was being operated at a speed in excess of that prescribed by a valid ordinance of the city of Kinston, and that no signal by bell or whistle was given by the approaching train. It has been held in many cases in this State that it is a negligent act to back a train over a crossing “without a light if it was dark, or without a flagman if it was not.” Parker v. R. R., 181 N. C., 95, 106 S. E., 755.

The fourth issue must be answered in the negative. The record by which appellate courts are bound shows the following: “During the course of argument ... by counsel for defendant, counsel . . . argued that the plaintiff, Pridgen, was not the real interested party; that Pridgen was paid by the insurance company under the "Workmen’s Compensation Act, and that the insurance company was the real interested party and the one pushing this suit. The above argument by counsel for defendant was made without objection of counsel for plaintiff. That thereafter in response to argument by counsel for defendant, . . . counsel for Pridgen, over the objection and exception of counsel for defendant, read to the jury sections 30 and 41 of the Workmen’s Compensation Act, and stated to the jury that under the law that the insurance company would not be interested to a greater extent than a maximum sum of $6,000, . . . and that the insurance company could only be subrogated to a maximum of said amount, . . . and that anything recovered over $6,000 would not go to the insurance company, and that anything recovered over and above the amount paid by the insurance company under the law was the property of plaintiff, Pridgen. Counsel argued that plaintiff, Pridgen, was an interested party and an actual party, and was entitled to recover anything in excess of what the insurance company paid Pridgen, and receive nothing if nothing in excess of what tbe insurance company bad paid was recovered.” It is manifest tbat counsel for all parties were debating before tbe jury tbe distribution of tbe proceeds of tbe recovery if damages were awarded, and tbe argument of counsel for plaintiff was in tbe nature of a reply to an argument proffered by tbe defendant. Consequently tbe defendant bas no just ground for complaint.

There are certain other exceptions which have not been overlooked, but they do not warrant an upset of tbe judgment.

The defendant files a petition for a new trial for newly discovered evidence. In substance the newly discovered evidence is contained in the affidavit of G. W. Bray. This man was a witness for the plaintiff at the trial and testified unequivocally that the plaintiff Pridgen “worked for the Service Company at the same time I was. I know bis reputation and it is good. ... I know that the company employed Mr. Pridgen through me.” In an affidavit filed 28 February, 1932, Bray swore “that at no time was Henry B. Pridgen so employed and be was never paid any sum whatsoever by this affiant or the company for services.” It is obvious that the witness Bray in substance declares tbat bis sworn testimony at the trial was false. The standards prescribed for determining whether the proposed newly discovered evidence will warrant a new trial are contained in Brown v. Sheets, 197 N. C., 268, 148 S. E., 233. The proposed evidence tends only to contradict or impeach or discredit a former witness at the trial, and hence such evidence does not meet the test prescribed by law. If the alleged false testimony was the only evidence of the employment or the sole evidence supporting the cause of action, a different question would be presented. See McCoy v. Justice, 199 N. C., 602, 155 S. E., 452.

No error.

Stacy, 0. J., took no part in tbe consideration or decision of tbis case.