dissenting. I am unable to concur in tbe opinion of tbe Court in any aspect, either in its construction of tbe law or its understanding of tbe facts. Tbe plaintiff, who knew nothing of tbe accident, introduced only two witnesses besides himself, Thompson and Simpson, both at tbe time of tbe accident being in tbe employ of tbe defendant, and now running as conductors on other roads. All tbe other witnesses were introduced by tbe defendant. Tbe book of rules was produced by tbe defendant, and identified by defendant’s witnesses alone. Tbe record states that- tbe “plaintiff offers in evidence tbe special rules printed on tbe time-table, numbered Q and J. "Upon objection by defendant, Eule Q was ruled out by tbe Court and plaintiff excepted.” Tbe record also states that “Plaintiff introduced in evidence Eules 47-1, 47-J and 47-K from tbe book of rules of defendant. Defendant objected to tbe introduction of these rules, as not being applicable to tbe train in question. Plaintiff withdrew 47-J and 47-K. Eule 47-I was admitted, and read in evidence as follows: T. They are required to observe tbe position of all switches and know that such switches are right before passing over them.’ ” It does not directly state whether Eule J was admitted, but in any event *378there is no evidence whatsoever that the intestate had ever been given a copy of the tiine-tahle containing’ the rule, or indeed had ever seen or heard of it. The opinion says that the intestate had full notice of Rule J. I find no evidence of that fact. If the opinion means that Rule J was in the book of rules for which the defendant introduced the intestate’s receipt, I can only say that I find no evidence of that fact. If it means that Rule J in the time-table is the same as Rule 47-J in the book introduced by the plaintiff, I see no proof of that; but if there were, it was withdrawn upon the objection of the defendant, who contended that these rules were not applicable to the train in question. If these rules are not applicable to the train in question, they should not be ground for a new trial. There is no evidence that the intestate actually knew he was required to remain at the switch. The mere receipt of the book of rules by the intestate certainly does not tend to prove his knowledge of a rule that is not shown to have been in the book. Simpson, the conductor of intestate’s train, testified as follows: “When I went to the office Holland was coming from the switch towards the caboose. I saw him change the switch and lock it to the main line. After my train went in, I saw him do that. * * "x' Q. Did you leave anybody especially in charge of it, except as regulated by the rules ? A. No more than the instructions I gave to the man when I left Raleigh that morning, 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. * * * Q. How far was Holland from the switch when you last saw him? A. I guess he was seventy or eighty feet, coming towards the caboose. He was about where the frog would be, seventy or eighty feet from the switch tank coming towards the caboose. * * * I did not give him any instructions as to this certain switch, because I'did not know that we were *379going to use that switch. My instructions were to look after the switches in my absence. * * * Q. You say you saw Mr. Holland go around there and throw the switch back to the main line? A. ILe got off the caboose at the switch and threw it to the main line and locked it. Q. That was done in your presence ? A. Yes, sir. Q. And that was the last time you saw Holland at the switch? A. Yes, sir. Q. When you saw him he was going back to the caboose? A. Yes, sir.” This evidence shows that the intestate was not told to remain at the switch, but was told to lock it to the main line; that he did so in the presence of his conductor and came to the caboose with the assent of his superior officer, or at least in his presence and without any objection on his part; that no one saw him go near the switch again; and that two trains thereafter passed the switch in safety. The instruction of his conductor to “look after the safety of the train,” if construed in the light most favorable to the plaintiff, as should be done on a motion for an adverse direction of the verdict, might mean that the intestate must go loach and look after the train. We must remember that the intestate is dead, killed by the act of the defendant, and is not here to tell his story. Many a dead man is made to bear a living sin.
The opinion'of the Court says that it was error to give the following instruction: “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.” The Court seems to admit that it is correct as a general principle of law applicable equally to employees as to passengers; but that it is not applicable to this case on account of some assumed state of facts contrary to *380tbe verdict of tbe jury. I cannot concur in any sucb opinion. Tbe opinion says that tbe following instruction should have been given: “If you answer tbe first issue ‘No’ you need not answer tbe other issues; that if you answer tbe first issue ‘Tes/ then under all tbe evidence you will answer the second issue ‘Yes/ and tbe third issue ‘No.’ ”
Tbe Court again says that “tbe intestate bad full notice of Eule J", anabases its opinion upon sucb assumption of notice. I would be very glad to have evidence of this fact pointed out to me, as I have not been able to find it. It is not shown to be in tbe book of rules, receipted for by tbe intestate, and I find no evidence whatever offered either by tbe plaintiff or tbe defendant that tbe time-table was ever issued to tbe intestate, or even ever seen by him. Moreover, tbe above instruction included tbe evidence of tbe defendant, tbe credibility of which can never be assumed in directing a verdict against tbe plaintiff. This goes far beyond Neal’s case.
I am aware that this was held in Dunn v. Railroad, 126 N. C., 343 ; but I am not aware of any other case to tbe same effect. Tbe contrary doctrine that no negligence can be considered that is not directly or concurrently tbe proximate cause of tbe accident has been since fully recognized. Ill tbe recent unanimous opinion in Butts v. Railroad, 133 N. C., 82, this Court held that: “An instruction which makes tbe liability of tbe defendant depend on its negligence, without regard to whether sucb negligence was tbe proximate cause of tbe injury, is erroneous.” Edwards v. Railroad, 129 N. C., 79; Curtis v. Railroad, 130 N. C., 437. It will scarcely be contended that any difference in proof, either as to nature or amount, can be required to establish tbe negligence of tbe defendant than that of tbe plaintiff. Both are entitled to tbe benefit of tbe same principles of evidence and tbe equal enforcement of tbe law.
*381Tbe doctrine of the last clear chance would seem to apply to the action of the engineer on the incoming train, as he violated the rules of the company in passing the switch without receiving the “all-right signal,” as required by Rule J, and without “knowing that such switches are right before passing over them,” as required by Rule 47-1. Moreover, it would seem to be an act of continuing negligence on the part of the defendant to construct a side-track and switch at the end of a curve where they could not be seen in time to stop. In the equal administration of the law it would seem that rules binding upon the intestate would be equally binding upon the defendant and its other agents.
Clark, C. J., concurs in the dissenting opinion of Douglas, J.