#### HENRY B. PRIDGEN and UNITED STATES FIDELITY AND GUARANTY COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY and CAROLINA DELIVERY SERVICE COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 15 June, 1932.)

1. Master and Servant F a — Insurer is subrogated in amount of award in recovery against tort-feasor and employee is entitled to excess.

An insurance carrier who has paid and is continuing to pay tbe award to an employee under tbe provisions of tbe Workmen’s Compensation Act is entitled to be subrogated to tbe rights of tbe employee against tbe *tort-feasor*whose negligence caused tbe injury to tbe extent of tbe amount paid under tbe award, and an action against such *tort-feasor*is maintained primarily for tbe benefit of tbe insurance carrier and tbe *63amount of the recovery should be applied first to the reimbursement of the insurance carrier and the excess, if any, should be paid the injured employee.

2. Same — Tort-feasor Iby answering complaint adopted theory of recovery alleged in action by employee and insurance carrier.

Where an action is brought against a *tort-feasor*in the name of an injured employee and the insurance carrier who had paid and was continuing to pay the award under the Compensation Act, and the complaint alleges in effect that recovery is sought by the insurance carrier for its own benefit only to the amount of the award, and by the employee for the excess, if any, and the defendant *tort-feasor*does not demur to the complaint but calls upon the insurance carrier to disclose the amount it has paid: *Held,*the defendant is deemed to acquiesce in and adopt the theory of liability set up in the complaint.

8. Trial C a — Consolidation of actions held not error in this case.

The consolidation of an action by an employee to recover for personal injuries sustained in a collision between the truck he was driving and the defendant's railroad train with an action by the employer for damages to the truck *is held*not error, the two cases having arisen from the same injury and practically the same defenses having been interposed.

4. Railroads D b — Evidence of negligence of railroad company held suf- ' ficient in this action for damages from collision at crossing.

Where the evidence tends to show that a railroad company backed cars over a crossing at night without a light thereon, or a flagman at the crossing, and that the ears were moving at a speed in excess of that allowed by the town ordinance and struck and injured the plaintiff, and that no warning by signal or bell was given, it is sufficient to be submitted to the jury on the issue of the railroad company’s negligence, although the plaintiff could have seen the approaching cars in ample time to have avoided the injury had it been light.

5. Tidal O a — Exceptions to remarks of counsel held untenable in this case.

In an action against a *tort-feasor*to recover damages sustained by an employee who had been compensated therefor under the provisions of the Compensation Act, an exception to remarks of plaintiff’s counsel that the employee would receive all amounts recovered over the amount of the award paid by the insurance carrier will not be sustained when such remarks were made in answer to remarks of the defendant’s counsel that the insurance carrier was the party really interested and was the one pushing the suit.

6. Appeal and Error K c — Petition for new tidal for newly discovered evidence is refused in this case.

Newly discovered evidence on appeal is not sufficient for the granting of a petition for a new trial when such evidence tends only to establish a contradiction by a witness of his own testimony given upon the trial and there is other testimony to the same effect from other witnesses.

Stacy, C. J., took no part in the - consideration or decision of this case.

*64Civil actioN, before *Small, J.,*at June Term, 1931, of LeNOib.

In tbe Pridgen ease it was alleged that Pridgen, a young man in tbe employ of tbe Carolina Delivery Service Company, was seriously and permanently injured on 21 December, 1929, resulting from a collision between a truck driven by bim and tbe train of defendant railroad. It was further alleged that tbe injury occurred in tbe city of Kinston where tbe track of defendant crossed at grade Yernon Avenue in said city. It was further alleged that tbe injury occurred at 6 :30 o’clock in tbe morning when it was dark, and that tbe defendant backed a train over said crossing without a watchman or light upon tbe train or box ear, and at a rate of speed in excess of five miles per hour in violation of an ordinance of tbe city of Kinston. In tbe ninth paragraph of tbe complaint thfe coplaintiff, United States Fidelity and Guaranty Company, alleges that it insured tbe Carolina Delivery Service Company, tbe employer of Pridgen, “against liability for compensation to its employees, and as insurance carrier of said employee under tbe provisions of said Compensation Act has paid tbe plaintiff Pridgen, and is now paying tbe plaintiff Pridgen, compensation for loss of services in compliance with said act. That by virtue of said act, and especially section 11 thereof, said United States Fidelity and Guaranty Company has become subro-gated to tbe right of recovery of tbe plaintiff Pridgen against tbe defendant for damages, as hereinbefore alleged, until said United States Fidelity and Guaranty Company shall be repaid whatever amount, together with attorney fees and costs, to be fixed by tbe Compensation Commission as provided by said act, as it shall have paid out on account of injuries sustained by said Pridgen — and said Pridgen is entitled to whatever amount be may recover in this action over and above what is to be paid said United States Fidelity and Guaranty Company.”

Tbe defendant filed an answer denying any and all acts of negligence and pleading contributory negligence.

Answering tbe allegations of tbe complaint with reference to tbe rights of tbe United States Fidelity and Guaranty Company, tbe defendant says: “It has not sufficient knowledge or information to form a belief except as alleged by tbe plaintiff, and tbe defendant calls upon tbe plaintiffs to make due proof of tbe relation of tbe plaintiff, United States Fidelity and Guaranty Company, to tbe plaintiff, Henry Pridgen, in respect to tbe matters complained of in this action; and further, to disclose to tbe court tbe amount that it is now paying tbe plaintiff, Henry Pridgen, in compensation for loss of services and tbe total amount of compensation which it is legally required to pay.” In tbe second action tbe Carolina Delivery Service Company alleged that it owned *65tbe truck in wbicb tbe plaintiff, Pridgen, was riding at tbe time of tbe injury, and tbat said truck was totally destroyed by tbe negligence of defendant, and-prayed damages in tbe sum of $1,150. Tbe defendant filed an answer denying all allegations of negligence.

Tbe cases were consolidated at tbe trial, and issues of negligence, contributory negligence and damages were submitted in tbe two cases. Tbe jury awarded Pridgen tbe sum of $13,083.33, and also awarded tbe Delivery Service Company tbe sum of $300 for damage to tbe truck.

In tbe Pridgen case it was adjudged: “It further appearing to tbe court tbat tbe plaintiff, United States Fidelity and Guaranty Company, has made payment to tbe plaintiff, Henry B. Pridgen, pursuant to tbe aforesaid award of tbe Industrial Commission; and, it further appearing to tbe court tbat under tbe provisions of section 11 of tbe Workmen’s Compensation Act tbe plaintiff, United States Fidelity and Guaranty Company, insurance carrier for tbe said employer of tbe plaintiff, Henry Pridgen, is subrogated to tbe rights of said plaintiff and bis employer, Carolina Delivery Service Company, to tbe extent of such amount as it shall have paid or will pay under tbe said award of tbe Industrial Commission of North Carolina, to tbe plaintiff, Henry B. Pridgen, including tbe amount of any hospital bill, medical or other expenses, as set out in said award and as provided by tbe aforesaid Workmen’s Compensation Act. It is, therefore, ordered and adjudged that tbe interest of tbe plaintiffs, United States Fidelity and Guaranty Company and Henry B. Pridgen, as between themselves in and to this judgment shall be as follows: Tbat said United States Fidelity and Guaranty Company shall be entitled, out of tbe proceeds of this judgment when collected, first to be reimbursed for any and all sums and amounts wbicb it may have paid out to tbe said Henry B. Pridgen, or for bis benefit, under and pursuant to any award of tbe Industrial Commission, including tbe final award in said case, plus such amounts as are paid by it for reasonable expenses and attorneys’ fees, when approved by tbe Commission, and tbe said Henry B. Pridgen shall be entitled to tbe balance of said judgment, when collected.”

Tbe evidence tended to show tbat on 21 December, 1929, tbe plaintiff was working for tbe Carolina Delivery Service Company and engaged in hauling by truck moving picture films from Beaufort to Ealeigb. 'The tracks of defendant cross Yemen Avenue in Kinston at grade. On each side of Vernon Avenue, but not on tbe right of way of defendant, are certain factory and other buildings. Tbe plaintiff, Pridgen, driving tbe truck and traveling eastwardly, approached said crossing. He said: “I slowed down to a standstill and looked both ways to my right and left, and then I just did creep on until I was struck by tbe train. ... I *66did not see the train until after I was struck. I did not hear any bell ring nor any whistle blow. I did listen and I looked. ... I think it was a box car that struck me. There was no light on the box car. It was a shifting train. My lights on the truck were burning. I did not observe any watchman at all at the crossing, and there was no watchman there. No one at all-gave me any warning of the shifting train. I did not see any light on the train or in the hands of any one before or after I was injured.” Pridgen further testified that in his opinion the train was moving over the crossing between fifteen and twenty miles an hour. Ue further testified that it was dark at the time he approached the crossing. A witness for plaintiff, Pridgen, testified that the first track at the crossing, traveling east, is a sidetrack, and that it is about 55 feet from the center of the side track to the center of the main line track. He said: “If you should look north when you get in the open space between the first side track and the main line track you could observe a train all right and be able to stop if you had good brakes if traveling at a reasonable rate of speed before you reached the main line track. I think you could observe a train at that point between the first side track and the main line track at least a mile up the track looking north.” The plaintiff was injured on the main line track. There was other testimony from witness for plaintiff that it is about 50 or 60 feet from the first side track to the main line track. Another witness for plaintiff testified that “after you approached this crossing going east, when you are within ten feet of the first side track, you can see 200 feet to the north up the main line, and on the right you can see all the way down about a quarter of a mile.”

The defendant offered evidence tending to show that it was guilty of no negligence, and that the real cause of the injury was the contributory negligence and recklessness of the plaintiff, Pridgen.

From the judgment rendered the defendant appealed.

*Whitaker & Allen, B. Gr. Watkins and Wallace & White for plaintiffs.*

*Bouse & Bouse for defendant.*

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?

*674. 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 rail*68road 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 *69in 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.