dissenting: Where an injury occurs and nothing else is shown, this Court has adopted the rule as to res ipsa loquitur that this is evidence of negligence and does not raise a presumption of negligence. But when the manner of the injury is in proof and it is shown that it was caused by a derailment or collision, this raises a presumption of negligence, and the burden is properly thrown upon the defendant to disprove it. Our authorities are uniform as to this, and there is no cause shown for overruling them.
In Marcom v. Railroad, 126 N. C., 204 (derailment)', the Court said: “The burden of proving such a failure- of legal duty rests upon the plaintiff, but when that fact is proven or admitted the burden of proving all such facts as are relied on by the defendant to excuse its failure rests upon the defendant.”
In Wright v. Railroad, 127 N. C., 229 (derailment), this Court said: “While the mere fact that one has been injured *279while in a public conveyance does not raise a presumption of negligence in the carrier, it is otherwise when the injury results from something over which the carrier has control. Shear. & Red. Neg. (5th Ed.), sec. 59. Accordingly, when there is a collision or a derailment, and in similar cases, there is a presumption of negligence. 2 Shear. & Red. Neg., sec. 516, and numerous cases cited.” Then the Court proceeded to quote with approval the following paragraph from Marcom v. Railroad, supra: “Where the derailment of the engine resulted in the death of the intestate, a fireman in the employ of the defendant company, a prima facie case of negligence is to be inferred, and the burden is thrown upon the defendant to disprove negligence on its part.”
.In Stewart v. Railroad, 137 N. C., 689, it is said: “This case, arising out of a collision, is one of those in which the law raises a presumption of negligence on the part of the carrier. 'Wright v. Railroad, 127 N. C., 229; Marcom v. Railroad, 126 N. 0., 200; Kinney v. Railroad, 122 N. C., 961; Grant v. Railroad, 108 N. 0., 470; S. & R. Neg., sec. 516, and cases cited.”
In Hemphill v. Lumber Co., 141 N. C., 488, a unanimous Court again said: “AVhere there is a collision or derailment, and in like cases, the presumption of negligence arises,” citing above cases.
In a very recent case (Overcash v. Electric Co., 144 N. C., 572) Mr. Justice Connor, for a unanimous Court, said: “This Court has uniformly held — and in that respect it is in harmony with other courts and approved text writers — that a derailment of a railway train raises a presumption or makes a prima facie case of negligence — that is, a presumption that there is a defective construction or condition of the car or track or the mode of operation,” citing Marcom v. Railroad, 126 N. C., 200; Wright v. Railroad, 127 N. C., 229; Stewart v. Railroad, 137 N. C., 687; same case, 141 N. C., 266, and Haynes v. Railroad, 143 N. C., 154, adding: “This may be *280regarded, as settled.” Among other cases to same effect, Hemphill v. Lumber Co., 141 N. C., 488; Wilkie v. Railroad, 127 N. C., 210; Grant v. Railroad, 108 N. C., 471.
There is a wide distinction between res ipsa loquitur, which is merely evidence of negligence, and which arises from the mere fact of injury sustained, without showing the cause, and proof that it was caused by a derailment or collision, which is so unusual a cause, so dangerous in the natural results and which can scarcely ever possibly occur without negligence. In such cases our authorities, as above shown, raise a “presumption of negligence, the burden of disproving which is upon the defendant.”
This rule is a matter of settled public policy and should not be changed, if at all, except by the superior power of legislative enactment, which is exceedingly improbable. Indeed, it is fax more probable that the Legislature would re-enact the rule we have hitherto held. There are good and sound reasons why common carriers should not be relieved of this duty, recognized as a “settled rule,” that they must disprove the presumption of negligence arising from a collision or derailment. Accidents from such cause can rarely, if ever, happen without grave negligence. If there should be facts in any case to disprove such presumption of negligence, evidence thereof is easily accessible to the common carrier. It would be difficult in behalf of the deceased or dismembered victim to prove negligence as an independent fact. He knows nothing of the surroundings. He may never have been at the spot before. When he has shown that the injury was caused by a derailment or collision he has usually done all that he can do. The burden of disproving the presumption of negligence arising from a collision or derailment should remain upon the carrier, as it has always been heretofore held. With the officially ascertained fact that over 100,000 persons were, wounded 'and more than 10,000 killed by the railroads of the United States last year, and that the ratio.,of killed and *281wounded in proportion to the number of passengers and employees is twenty times greater in this country than on the railways of Europe, the demands of justice are for the exaction of stricter requirements for the prevention of such terrible consequences of negligence, and not for the lessening of the safeguards heretofore exacted in fixing liability for injuries sustained, when they have occurred in a collision or derailment.
The charge of the court that, the injury having been caused by a derailment, a presumption of negligence arises and the burden is upon the defendant to disprove such presumption, is in accord with the repeated and uniform decisions of this Court, above cited, applicable to such state of facts.