The plaintiff’s intestate, employed by the defendant as rear brakeman and flagman on its extra freight train No. 578 going south, was on duty when, on the *369morning of October 18, 1902, the train passed into the siding over the switch at Rockingham, there to await the passage of other trains of the defendant. He was acquainted with the rules of the company, one of which (Rule J) reads as follows: “When a train takes the side-track to be met or passed by another train, the conductor or ñagman must remain at the switch used by his train to enter the siding, and when the train is clear of the main line and the switch is properly set, he will take a position not less than ten feet from the switch and give the 'go-ahead’ signal to the approaching train, and must remain not less than ten feet from the switch until the approaching train has entirely passed the switch. No train will pass the switch which has been used by the train in taking the siding, unless the 'all-right’ signal is given.” The signal used after dark must be “white.” When the train was well on the siding the conductor went to the railroad office on business and remained there until the collision hereafter to be described occurred, and the intestate went back to the switch and, according to the evidence of the conductor, changed it and locked it to the main line.
The intestate also had been ordered by the conductor when they left Raleigh that morning to “always when he headed in a switch to change it and lock it to the main line, and in my absence, to look out for the safety of the train.” The intestate left the switch, returned to the caboose at the northern end of his train, entered it and never returned to the switch. While train 578 (intestate’s) was on the siding two trains of the defendant, 38 and 40, coming from the south and going north, passed along the main line in safety. Af-terwards, probably twenty or thirty minutes, train No. 33, a fast passenger train with engine and several heavy coaches, coming from the north and going to the south, with the right of way and at a speed of forty miles an hour, ran into the *370switch which the intestate ought to have closed and guarded, under the rules of the company and the instructions of the conductor, and collided with the caboose on train 578 and killed H. L. Holland, the plaintiff’s intestate.
On the question of negligence the usual three issues were submitted to the jury, which with their responses are as follows: 1. “Was the death of Holland caused by the negligence of the defendant as alleged in the complaint ? ‘Yes.’ ” 2. “Did Holland, by his own negligence, contribute to his death? ‘No.’” 3. “Notwithstanding the contributory negligence of Holland, could the defendant, by the exercise of ordinary care, have prevented his death? ‘Yes.’ ” At the request of the plaintiff his Honor instructed the jury as follows: “If the jury should find from the evidence that the plaintiff’s intestate was an employee upon the defendant’s train and was killed in the collision of the defendant’s trains in the day-time, there is a presumption of negligence upon the part of the defendant, and in that case the burden is thrown upon the defendant to disprove negligence on its part.” We think there was error in giving that instruction. So far as passengers are concerned, injuries suffered by them from contact with anything under the control and direction of the carrier, or which the carrier ought to have taken precautions against, or from the want or absence of anything which the carrier ought to have furnished, is sufficient to put him to his proof to show that he was not negligent ; and therefore, upon that principle, a prima facie case of negligence is made out against a carrier upon the mere fact of a collision between trains. Shear. & Red., Yol. 2, sec. 516. In such a case the maxim res ipsa loquitur applies. The affair speaks for itself. And it must be that the same rule applies as to employees of a carrier. In such case neither the passenger nor the employee has anything to do with the management or control or with the schedule of the *371trains. But, in the case before ns, it cannot be said tbat the maxim res ipsa loquitur applies. One of tbe trains was on a side-track and bad been there for some little time. Who was at fault because of the collision, whether the defendant through its engineer of train 33, or the intestate whose duty it was to guard the switch against train 33, was a matter not explained by the collision itself, but dependant entirely upon the circumstances attendant upon the collision, to be shown by the evidence. And there was evidence, outside of the rules under which he was doing service, going to show that the intestate was negligent. It would be a strange rule of law if tinder such conditions a presumption of negligence on the part of the carrier, the defendant, should arise upon proof of the collision.
There was another error in the failure of his Honor to give to the jury a special instruction, asked by the defendant, in the following words: “If you answer the first issue ‘No' you need not answer the other issues; that if you answer the first issue ‘Yes,' then under all the evidence you will answer the second issue ‘Yes,’ and the third issue ‘No.' " There was exception made by the defendant for the failure to give each of these instructions. We think each of them should have been given. Eule J of the company, which we have quoted in full, and of which the intestate had full notice, required him, not only when his train went in on the siding, to change the switch, but it also required him to take his position at the switch and remain not less than ten feet from it, until the approaching train had entirely passed the switch. The whole of the evidence tended to show that he left the switch and went into the caboose and was killed in it, having never returned to the switch. There is no dispute about the truth of that evidence, and but one conclusion can be drawn from it in reason. Hinshaw v. Railroad, 118 N. C., 1047; Neal v. Railroad, 112 N. C., 841. He neg-*372lectecl a duty to stand by and guard that switch, and the Court should have instructed the jury to answer the second issue “Yes.”
It was a question of law upon all the evidence. The jury answered the second issue “No,” notwithstanding all the evidence tended to show that he did, and it is probable that the jury answered that issue as they did because of an erroneous instruction from the Judg’e on that point. The following is that instruction: “If the jury find from the evidence, under the rules of the company, that Holland, the intestate, was required to throw the switch to the main line, lock it, remain at or near it, and failed to do so, and that by reason of such failure he was killed, and that such failure was the proximate (italics ours) cause of death, then he is guilty of contributory negligence and the jury should answer the second issue 'Yes.’ ” In actions for negligence, where the three issues are submitted, the matter of proximate cause cannot be considered by the jury on the second issue. Dunn v. Railroad, 126 N. C., 343.
We think, too, the jury should have been instructed to answer the third issue “No.” There was evidence tending to show that because of a sharp curve in the railroad track just before reaching the switch from the direction of Hamlet, the engineer of train 33 was prevented from seeing the switch signal at a greater distance than seventy or eighty yards — a distance too short in which to stop his train if he had discovered the danger signal at the switch; and the plaintiff contends that that faulty construction of the track, taken in connection with the location of the switch, was a continuing negligence on the part of the defendant, and that even though the plaintiff might have been negligent in leaving the switch, yet the defendant because of its continuing negligence had the “last clear chance” to prevent the injury. We are not of that opinion. We think that the proximate *373cause of the injury was tbe failure to stand, by and guard that switch; to stand there and see that it was locked to the main line; tó see that it was kept locked to the main line until the very moment the engine of train 33 reached it; to stand there and see that no other person interfered with it. If he had stood there and discharged his duty, as the rules of the company and the instructions of the conductor required him to do, he could have prevented the accident, even though the engineer had failed to observe or could not have observed, because of a defect in the construction of the track, the signal at the switch in time to have stopped his train before reaching it.
New Trial.