dissenting. Without discussing other rulings of the Court which I think were erroneous and entitle the defendant at least to a new trial, I will notice a few which go to the very root of the case, and, in my opinion, are palpably wrong and work great injustice to the defendant. A railroad company would be grossly derelict in its duty, both to the public and its employees, if it failed to adopt such rules and regulations for the running and operation of its trains as make for safety, and it follows that the servant, for whose guidance in the discharge of his important and hazardous duties these rules are made, must obey them, and if he fails to do so and is himself injured by reason of his disobedience, he is to be regarded in law as the author of his own injury, and if thereby he injures others, the railroad company is liable to them, under the rule respondeat superior, and he is liable to the company for all damages caused by his negligence. Holland v. R. R., 143 N. C., 435; Haynes v. R. R., 143 N. C., 154. The intestate’s death was caused, not by the negligence of the defendant, but by his own glaring disobedience of express orders and regulations, which if observed would have carried him on his train safely to his destination. He was not only disobedient, but his conduct was reckless, and, in consequence of it, he rode to his death. I think this appears from the plaintiff’s evidence and the undisputed facts. The tragedy is regrettable, but the law must be administered with cold neutrality. With slight change, we may well repeat what we said in Holland v. R. R., supra: “The intestate was the one to whose keeping had been committed the safety of his comrades in the company’s service (of the passengers on the train) and of his employer’s property, and he was more responsible for it than any one else. He failed in the performance of his duty at the very moment when his obedience to orders and, his vigilance were most required to prevent the resulting catastrophe. His negligence was ever present and the *112efficient and, indeed, the dominant cause of bis injury and death, reaching to the effect, and therefore proximate to it. To subject the defendant to a recovery in such a case does not seem to be equitable, and would certainly contravene established principles of law. Plaintiff’s death was caused, not by the defendant’s negligence, but by his own disobedience of instructions.” If a servant disregards the express directions of his master, and pursues his own way in performing his duties, the resultant injury to himself, if any, the law imputes to his own wilful or negligent act, as the proximate cause, if not the only cause thereof. Whitson v. Wrenn, 134 N. C., 86; Hickes v. Mfg. Co., 138 N. C., 319; Stewart v. Carpet Co., 138 N. C., 60; Biles v. R. R., 139 N. C., 532. The intestate simply did something which he was told not to do. He substituted his own will for that of his employer and his case falls within the maxim volenti non fit injuria. Patterson v. Lumber Co., 145 N. C., 42. These principles are directly applicable to this case.
1. I think the motion to nonsuit should have been granted and for the following reasons: I will assume in the beginning that the red light was not displayed at the switch, and there is no evidence that the white, or safety light, was, so that the case must be considered as if there was no light. Rut that of itself 'is made a signal of danger, as much so as if the red light had been shown, and the duty of the intestate, by the very terms of the rule, was to stop his train. This was the mandate of the rule as much so as if there had been a red light there to warn him of danger. The order wras not even to slow down or bring his train under control, but to stop at once, and herein is to be found the error in'the opinion of the court as to proximate cause. If he had obeyed the rule and stopped, seeing that there was no light at the switch, the accident would have been a physical impossibility, for two trains, one at rest and the other moving away from it, could never collide. This is so very evident that I presume the Court should take judicial notice of it. It is as much an axiom in physics as that a man cannot be in two widely separated places at one and the same time, and as judges, we have no right to close our eyes to the existence of such a fact and refuse to take notice of it without proof and a finding of the *113jury. We have tbe right to use our common sense, experience and observation as to certain matters, and this is one of them. It is said there is no evidence that Boney did see that there was no light at the switch. That is not the question. It was his duty to see — to keep a constant look-out' — especially at this xolace, and if he failed to do so, it is the same in law as if he had looked and seen. Arrowood v. R. R., 126 N. C., 629; Whitesides v. R. R., 128 N. C., 229. We have so held in eases without number, when charging a railroad company with responsibility for the negligence of its engineer, and the decision must apply here, unless we recede from the position taken in those cases. In Pickett v. R. R., 117 N. C., 616, it is said: “If he (the engineer) had looked and stopped the train, the collision would have been prevented, notwithstanding the previous want of care (or negligence) on the part of the boy who was killed.” And again, after citing and referring to numerous cases of this Court, theretofore decided, on the same point, the Court says: “It was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to exercise reasonable care in keeping a lookout, not only for stock and obstructions, but for apparently helpless or infirm human beings on the track, and that the failure to do so, supervening after the negligence of another (the alleged negligence of Cole), where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.” If he did not actually see, he would, in law, be taken to have seen, when he can see by looking, for he is not permitted to say, under such circumstances, that he did not look and, therefore, did not see. By the rules of the company and of the law, it was made his duty to keep a watchful lookout, and if he had looked he would have discovered, long before he reached the switch, that there were no lights burning there. If there was one, he would, by all the testimony, have seen it, and not seeing it, he was under a peremptory order to stop. He had no discretion in the matter. His duty was simply and solely one of obedience, and had he obeyed, the accident would not have occurred. What becomes of the doctrine of proximate cause? He knew where-the switch was, for he gave the station blow two miles away as *114be approached it, and the switch was between his train and the station. We have seen that he was negligent, if he could have known there was no light at the switch, and did not know. But General Burnett, witness for the plaintiff, who was in the cab with him, testified that the track was straight for at least two miles, and that he looked long before they reached the switch and saw no light there. Lights, red or white, were displayed at the switch before that time, and in all this he agrees with the other witnesses. He looked when Boney blew for the station, being then a half a mile from the switch, and saw no lights. There is no evidence to the contrary of this. No witness testified that he saw a white light, and the absence of such a light was a signal of danger and required Boney to stop his train. Speaking of a situation similar to this, the Court (Connor, J.), in Haynes v. R. R., 143 N. C., at page 164, said: “Assuming that the light was out, or, as expressed by some of the witnesses, that the switch showed ‘a dead light/ the rule imposed upon the plaintiff’s testator the duty of treating it as a danger signal, and directed him how to act. The evidence was plenary that he knew the rule, and, if in force, was under obligation to obey it." But he was forbidden to run his train there at a greater speed than six miles an hour, and if he had been running at that rate of speed, he could surely have discovered as he approached the switch, that there was no light there and have easily stopped his train before entering the switch at the crossover, but at that very time his speed, according to all the proof, was at least thirty-five miles an hour. His death, in any view of the evidence, as there is really no disputed fact upon this branch of the case, was due to his own negligence in two respects: 1. He did not heed the danger signal at the switch, if he saw it. 2; If he did not see it, he was negligent in not looking for it, and, in law, the same result follows. 3. He was running his train at a reckless rate of speed, in open violation of the rule fixing the rate at six miles an hour and a further rule requiring “trains to approach junctions prepared to stop,” and “all trains passing Rocky Mount to approach the passenger station, main yard cross-over and middle-yard cross-over under full control, expecting to find the track occupied,” that is, impassable. *115If be bad obeyed any one of these rules, tbe accident would not have occurred, but instead of doing so, be ran bis train almost to its speed limit and nearly seven times as fast as be was authorized to do. Is proximate cause, in a case like this, a question of fact or of law? One of these rules required that be should approach the switch with his engine under full control, as if expecting to encounter danger ahead, and another that he should be prepared to stop unless both switches and signals are right and the track is clear. These rules were adopted to prevent just such a catastrophe as this one, and, too, for the engineer’s safety, and yet this company is held liable to him for his own wilful and daring violation of them. He took his life in his own hands, but the road must pay for it. It is impossible to consider the evidence, as the law regards it, without seeing at once that the intestate brought disaster upon himself. Suppose a man had been lying drunk and helpless on the track at the switch and ivas run over and killed, would we hesitate to say, under our decisions and the admitted, facts of this case, that- the negligence of the engineer was, in law, the proximate cause of his death? How can one rule be applied to the engineer, when representing the railroad, and another man is killed, and a different one when, under identically the same circumstances, he is killed — his negligence being the same in both cases? There is but one answer to this question. The same rule applies alike to the two cases, unless our former decisions are founded upon the wrong principle and should be overruled. We must exonerate the defendant in this case or reverse a long line of decisions by this Court.
I have so far discussed the case upon the motion for nonsuit and the admitted facts, or upon the plaintiff’s own evidence, favorably construed for her, and when thus considered, there is still another view of the case which conclusively makes against the plaintiff and defeats her right to recover. H. T. Cole, the engineer of the other train, ran down the track about twenty-five yards, and with his lantern signaled Boney to stop. Boney knew it was a stop signal, because plaintiff’s witness, General Burnett, testified that when 200 to 300 yards from the switch he answered it with two short blasts of the whistle, shut off *116steam and applied tbe emergency brakes. Do we need a jury to tell us tbat, if be bad been running at tbe proper speed — six miles an hour — be could bave stopped bis train witbin 150 yards, yes, witbin fifty yards? We know it. Tbe evidence is tbat be could bave stopped it, witb tbe appliances at band, witbin fifty feet, and tbis was not denied on tbe argument. But tbe speed of tbe train was so excessive tbat be was unable to stop, and tbat was tbe only cause of tbe intestate’s death. By tbe rule be was ordered to bave bis train well in band, so tbat be could stop in any emergency, if switches or lights were wrong or tbe track was blocked. We know tbat be could bave done so bad be been so minded, but Burnett, plaintiff’s witness, testified tbat Boney told him several weeks before tbe accident occurred tbat be bad orders to run slow at tbat place, but tbat be increased tbe speed of bis train from time to time until it reached tbe speed of thirty-five or forty miles an hour, at which it was running on tbe fateful night, and, too,'by tbe switch witb a danger signal displayed. After be bad received and acknowledged tbe lamp signal be bad, by Burnett’s testimony, 200 yards witbin which to stop bis train before reaching tbe switch, and 15 yards beyond tbe switch where tbe collision occurred. In all tbe cases beard by tbis Court since I bave sat in it, and there are many of them, there has never been presented such an example of reckless indifference on tbe part of an engineer to bis own safety and that of his passengers and fellow servants. He deliberately violated tbe rule of tbe company, after telling Burnett tbat it bad been issued .to him, and persistently continued to do so, and did it, too, almost witb tbe very words of tbe rule on bis lips when talking to Burnet't and while passing tbat very place, and yet tbis defendant must pay a heavy penalty for bis flagrant disobedience and, too, pay it to him or bis representatives. Tbis cannot be law, because it is not just, and sucb a ruling is utterly at variance witb well-considered decisions of tbis Court bolding railroad companies liable to third persons for similar acts of negligence by engineers, but of not so grave, serious and pronounced a character. We bave heretofore charged tbe company because sucb negligence we then considered to be tbe proximate cause of tbe injury, as in Arrowootffs case and Pickett’s case and *117tbe long train of cases following tbem, and by this decision we discharge tbe engineer and, in effect, pay him for his own wrong. If in any one of the cases just mentioned the road had sued the engineer, after being held responsible for his negligence and mulcted in damages, could it have been entitled to recover? I think so. We have so intimated, and even held, in several of the cases. If so, how can the engineer in this case recover?
2. But if the nonsuit should not have been granted, the court erred in refusing to give the instructions requested. I will lay special stress and emphasis on one only — the seventh: “If the jury shall find from the evidence that at the time No. 82, the train being run by Boney, deceased, was approaching the switch into which he ran and the switch had no lights, either red or white, and Mr. Boney knew there were no lights, either red or white, as a signal at the switch at the time, and he failed to ' slacken his speed and stop his engine, then he was guilty of contributory negligence, and the jury will answer the second issue, Yes.” It is said in the opinion of the Court that this instruction should not have been given, first, because there is no averment in the answer upon which it can be based, and second, because it is predicated on the fact that the intestate lenew there was no light, of which there was no evidence. We will consider these reasons in inverse order. As to the intestate’s knowledge that there was no light at the switch, it must be remembered that the instruction asks the jury to find the fact of knowledge, and does not assume that Boney had such knowledge. The only question, therefore, is, was there any evidence of knowledge? We have shown, I think, that it makes no difference, in laiu, whether he had actual knowledge or not, if by the exercise of the care exacted of him, he could have had it. But Burnett, plaintiff’s own witness, testified that he looked and did not see any light. Could the jury infer from this fact and the further fact that it was Boney’s duty to keep a lookout, that he did so, and if Burnett saw no light, that he saw none? But there is other evidence, far more than a scintilla, that Boney was looking, and what is it ? He saw the signal lantern of Cole swaying to and fro, and he would not have seen it if he had not been looking. Another fact, he blew for the station as he saw its *118lights, and was, therefore, looking ahead. Boney was familiar with the line; he knew he was within the yard limits, because there were several tracks and indications all around him showing that fact, and those on the engine showed by their testimony that they knew where the switch was with reference to the position of the approaching train. There are other facts and circumstances which tend to prove knowledge by Boney in regard to the light at the switch. A man knows as well when he does not see a thing, as when he does see it. Am I wrong in making this common sense statement? If the light was not in sight, it was his duty to stop, and his failure to do so was not only gross negligence, but the decisive and proximate cause of his death, for if he had obeyed the rule and stopped, there would have been no collision. He had the last clear chance. No light being as much of a danger signal as a red light, it was his plain duty to so regard it. It was for his employer to make this rule and for him to obey it. It turns out that it was a wise rule, and an observance of it would have saved Boney’s life. ¥e have held that, under such circumstances, the employer is not liable ■to the servant because the latter has seen fit to disregard orders and act upon his own judgment, and it would not be right to hold the master responsible for the consequences. Patterson v. Lumber Co., 145 N. C., 42; Whitson v. Wrenn, 134 N. C., 86. It will not do to say that his failure to stop the train was not the proximate cause; in the first place, because it was as a matter of law; and in the second, because if there was any duty resting upon Cole to turn the red light, when no light was itself a danger signal, and I think there clearly was not, Cole did give him a signal, equally as good and which he received in full time to stop his train if he had been running at a proper speed. He answered this signal and could easily have brought his train to a full stop after doing so, but for his wilful disregard of orders as to speed. The company, by its rules, had prescribed a safe course for Boney to pursue, and it would have proved to be a most effective one. It was not required to provide more than one. If Boney had kept his engine under control, as if expecting to find the road blocked and the junction and switches in a dangerous condition — and this was what he had been *119ordered, in plain language to do — be did not require any signal from Cole, as tbis duty was enjoined upon bim'witbout regard to tbe signal lights at tbe switch. Not only did be have tbis peremptory order, but Burnett testified that a light at tbe switch could have been seen two miles away on tbis straight track, and not seeing a light, as there was none there, his duty was to stop and ascertain the cause of this unusual situation. The opinion of the Court is based upon the erroneous hypothesis that Boney was entitled to have two signals of danger. Edwards v. R. R., 132 N. C., 99. The company had the right to make the absence of a light a danger signal, and yet it is argued that even if Boney saw there was no light at the switch, he was entitled to have the red light turned to the track by Cole. The force of this reasoning is conceded in the opinion, and the answer to it is that Boney knew that, by the rules, the track must be kept clear five minutes before his train reached the switch. But that order was made in the interest of greater safety, and was to be executed by other employees, and Boney had no right to rely on its observance, for he was commanded to proceed with his train under control as if it had been violated and proper precautions had not been taken at the switch, and the track ahead was blocked so that he could not proceed on his way. By all the evidence, he ran in flagrant disobedience of orders, and at the rate of thirty-five miles an hour, into the switch and cross-over, and right by a danger signal. This is his case in a nutshell. The fallacy of the entire argument of the Court is that the premises are not justified by the admitted facts and the reasoning practically ignores the legal effect of the provisions of the rule, that the speed must not be in excess of six miles an hour; that no light shall be as much a danger signal as a red light, and that the engine must be kept under control, so that the engineer can guard against danger in any possible emergency. The instructions given by the court and copied in the'opinion were erroneous because the first one required the jury to find that Boney could have stopped his train, then running at a high rate of speed, after seeing the signal of Cole, whereas they should have been told that if he was unable to stop it by reason of the excessive speed, and could have stopped it if he had been running at the *120prescribed rate, bis own act in disobeying tbe rule as to speed was tbe proximate cause of tbe injury, for tbe Court so beld in Norton v. R. R., 122 N. C., 911, and numerous other cases. Tbe other instructions were faulty, in that they required tbe jury to find whether Boney’s disregard of tbe rules was tbe proximate cause of bis death, whereas tbe court should have told the jury that, as be was warned of. tbe danger by tbe absence of a light, his failure to stop was the proximate cause of his death, as much so as if a red light bad been displayed, and besides that, bis failure to observe the rule requiring him to have bis engine under control as if tbe track were blocked, and so that he could stop it if tbe track was' not clear, was itself tbe direct cause of bis death, for we have held in Norton's case and in many others that if tbe engineer deprives himself of the ability to stop bis train by tbe disobedience of rules or because tbe train is being run at an excessive speed, it makes tbe company liable for any resulting injury to others, as the engineer’s negligent act is “continuing” in its nature up to tbe very moment of the injury, and is, therefore, its proximate cause.' If be had not been negligent in this way, he would have had the last clear chance to avoid the injury, and for this reason so would the company, his employer, when defendant has been charged with liability. Edwards v. R. R., 129 N. C., 78. With greater reason does tbe law deny to him or bis representatives tbe right of recovery, when bis own negligent act caused tbe injury. My conclusion is that the plaintiff should, for tbe reasons stated, have been nonsuited, or that at least there should be a new trial, so that tbe case may again be tried according to correct principles; otherwise tbe defendant will be made to suffer vicariously for tbe fault of its engineer by compensating bis representatives, contrary to tbe maxim of our law, Nemo punitur pro alieno delicto. Wingate’s Maxims, 336.
But a difference is supposed to exist between a positive and a negative signal of danger. I think this is based upon a misapprehension of tbe rule, and that there can be no such distinction. Tbe question is not what Boney thought tbe signal should be, but what it is. The “red light” and “no light” are made by the rule positive notice of danger. Tbe mere fact that “no light” *121involves tbe negation of a fact does not change tbe character of tbe signal from a positive to a negative one, for tbe rule is plain, positive and peremptory in its mandate that whether there is a red light or no light, or even “a. light imperfectly displayed,” the engineer must stop and, in case there is no light, ascertain the cause and report to the superintendent. So that a red light, no light, or an imperfect light are all equally “positive” stop signals, and so declared to be in express and unmistakable terms. But if, under such a rule, an engineer could have any margin of discretion in the matter, that avenue to success is closed to the plaintiff by another mandatory order contained in Rule 106: “In all cases of doubt or uncertainty, the safe course must be taken and no risks run.” So that if Boney had any room for doubt or uncertainty, he should have stopped his train. There are two other similar rules. No. 105: “Both conductors and enginemen are responsible for the safety of their trains and, under conditions not provided for by the rules, must take every precaution for their protection.” No. 707: “The company does not wish, nor expect, its employees to incur any risks whatever from which, by exercise of their own judgment and by personal care, they can protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders of their superiors or otherwise.”
It is suggested that the defendant has not sufficiently pleaded the negligence of Boney in order to rely on it. This seems to me a very strained construction of the answer, one that is contrary to the express direction of the statute: “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” Pell’s Revisal, sec. 495 and notes. The common law rule is modified and every reasonable intendment is now made in favor of the pleader. Wright v. Insurance Co., 138 N. C., 488. We strictly enforced this provision in favor of the plaintiff, when charging negligence, against the objection of the defendant in Knott v. R. R., 142 N. C., 238, and the case is an authority here. The answer, perhaps, should have been more full and explicit, but I think it *122quite sufficient, under tbe statute, to present tbe.defense. It distinctly avers that Boney bad a copy of tbe rules, regulations and schedule, knew, or should have known, their contents, and that it was his duty to observe and obey them, while he failed to do so, and'was violating the rule when he was killed. It is true defendant pleads specially the failure to heed Cole’s signal with the lamp, but the answer embraces within its general sijope an averment of negligence in disobeying the rules, and this is all set up as a separate defense, the purpose of the defendant to plead such contributory negligence, if necessary to do so in this case, being apparent. This answer is certainly as comprehensive in its allegations as was the complaint in the Knott case. No such point is hinted at in the plaintiff’s brief, nor was it mentioned in the oral argument. Why? Because plaintiff’s counsel were well apprised by the answer of the true defense. Their brief shows it, for it deals with all the questions now raised by the defendant and as if properly pleaded. There was no objection to any of the evidence as being irrelevant because addressed to the defenses that there was a stop signal at the switch, and that Boney did not, under the admitted circumstances, handle his train as required by the rules. But whether his negligence in this respect is pleaded or not, all the questions are presented by the denial of the answer. If the breaking of the switch was not an unavoidable accident, Boney, under a known rule, was warned of the situation by a danger signal which he was as much bound to obey, as we have seen, as if the red light had been in plain view. The defendant had safeguarded the place and neutralized its negligence, if any, by displaying a danger signal, which Boney was required to obey by stopping his train. If there had been a red light there, and Boney had disregarded it and been killed, would not his death be imputed to his own wrongful act as the proximate and sole cause thereof? I have shown that “no light” or an “imperfect light” was, by the very terms of the rule, as much a danger signal as a red light, and the same result must flow from his failure to so regard it. If the fireman had been killed at the same place, instead of Boney, would this Court listen to a plea, in an action against the defendant for causing his death, that Boney had failed to obey its *123rales, or that be was not sufficiently acquainted witb tbe road and surroundings to know that he was approaching the switch and middle-yard cross-over, where he was killed? I think not, for the reason that Boney’s negligence, in such a case, would be held, in law, as the decisive and proximate cause of the fireman’s death and the sole cause, however well the defendant had safeguarded the switch. There is no difference, in law, between the two cases.
It is further suggested that the witness, J. C. Mercer, testified that when he was there the white glass was turned to the track. This was not evidence that there -was a white light burning at night. It tended to prove the contrary and, at most, was merely conjectural. Byrd v. Express Co., 139 N. C., 273 (Anno. Ed.).It was no more evidence of a white light than the fact that the red glass was turned to the track would be of a red light. It is not the glass that gives the signal, but the light that is in it. Mercer did not say that there was a light in the glass, and if he had so stated, the plaintiff’s own witness, General Burnett, testified that he saw no light there, and that a light could have been seen if one had been at the switch. Edwards v. R. R., 129 N. C., 78. So in this conflict of testimony, if there is any as between Burnett and Mercer, the defendant was entitled to the finding of the jury as to whether there was a light or not, and if there was none, then to the other finding whether Boney knew it (or could have known it if he had looked, which is the same thing), for this was the form of the prayer. The defendant did not assume, in the requested instruction, that there was no light at the switch, nor that Boney knew there was none or could have known it, but asked that both inquiries be submitted to the jury for their finding of the truth in regard to it. Was it not plainly entitled to the instruction, even if the “white glass was turned to the track,” and this is evidence that there was a light ? It was not by any means conclusive and is not so treated in the Court’s opinion.
My conclusion is that the plaintiff’s intestate caused his own death by reckless conduct on his part. He did what his employer told him not to do, and however unfortunate the res^^lt, the defendant is not responsible for it, if we follow our former *124unanimous rulings. Whitson v. Wrenn, and other cases, supra. They are all supported by many cases in this Court and by numerous decisions in other jurisdictions.
Bbowet, J., concurs in this dissenting opinion.