Allen, J.,
after stating the case. . The first and second exceptions are to the refusal to allow a witness for the defendant, J. M. Donlan, an engineer, to answer the following questions:
First. If the jury shall find from the evidence that Mr. Boney’s train had been running at six miles per hour at the time it collided with the train, and the other train with which it collided was running slowly in the same direction, what would have been the effect on the train and engine on which Mr. Boney was riding?
[105]*105Second. If tbe jury shall find from the evidence that the engine and train which were being driven by Mr. Boney had been running at the speed of six miles per hour or less at the time it struck the train of Conductor Cole, what would have been the effect of such collision and how greatly would it have damaged the train and imperiled the lives of those on board?
We do not think the ruling was erroneous. If the questions were asked of the witness as an expert, there is no finding or admission that the witness was an expert. As was said by Justice Manning, in Lumber Co. v. R. R., 151 N. C., 220: “We cannot assume that his Honor, in this view, found the witness to be an expert, and then excluded the question and answer. In order that the witness might testify when objection is made, there must be either a finding by the court, or an admission or waiver by the adverse party that the witness was so qualified.”
The questions were also not permissible to elicit the opinion of the witness, as he was not present at the time of the occurrence and the jurors were as competent to form an opinion upon the facts as he. Taylor v. Security Co., 145 N. C., 385; Wilkinson v. Dunbar, 149 N. C., 20.
Again it does not appear that the defendant has been prejudiced by the refusal to permit the questions to be answered, as it is not shown in the record what would have been the answer of the witness, or what the defendant expected to prove by him.
The fourth, fifth and sixth prayers for instruction requested by the defendant were as follows:
Fourth. If the jury shall find that Boney was running his train at a greater rate of speed than six miles per hour at the time he passed the switch, then he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
Fifth. If the jury shall find that Boney did not obey the rule set forth in the time-table, that he must approach the middle-yard cross-over and the switch where the accident occurred with his train under full control and expecting to find the track occupied, but in disregard of this rule approached the said switch and cross-over without having his train under full control, then he was guilty of contributory negligence, and the jury must answer the second issue, Yes.
[106]*106Sixth. Even though the jury shall find that the defendant was guilty of negligence, yet if they shall also find that Boney did not obey the rule set forth in the time-table as to the rate of speed and manner in which he should approach the middle-yard crossing and switch where the accident occurred, then he was guilty of contributory negligence, and the jury must answer the second issue, Yes.
His Honor' gave these instructions, except he added to each the element of proximate cause, Avhich we think he ought to have done. The question of proximate cause will be considered in discussing other exceptions appearing in the record. The defendant relied principally on its motion to nonsuit, and the exceptions to the refusal to give the following instructions:
Seventh. That 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.
Ninth. That it was the duty of Mr. Boney, engineer, to know the situation and location of the switches leading into the main line of the South Rocky Mount yards, and to observe whether the said switches were lighted and the signals indicated by it, and if the jury shall find from the evidence that the switch lamp at the place of accident was not lighted either with red or white lights, then it became the duty of Mr. Boney, deceased, to. stop his engine and ascertain the cause, and to ascertain if it was safe to pass over the track at that point, and if he failed to do so, he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
There are several reasons for refusing to give these instructions :
1. The answer does not allege that the plaintiff’s intestate was guilty of contributory negligence in that he failed to perform the duties imposed upon him in the instructions, and a defend[107]*107ant must allege and prove contributory negligence. Stewart v. R. R., 137 N. C., 690. A liberal construction of tbe answer discloses tbat it alleges two acts of contributory negligence and no other.
(1) Tbat tbe intestate was disobeying a rule by running in excess of six miles an bour.
(2) Tbat be failed to stop wben tbe lantern was waved.
2. Tbe instructions imposed tbe duty without qualification to know tbe exact location of tbe switch in tbe absence of a light, and to note tbat tbe light was not there. Tbe injury occurred in tbe night on a yard of tbe defendant where there were numerous tracks and switches, and it was for tbe jury to say, under these circumstances, whether be could, by tbe exercise of ordinary care, have discovered tbe absence of a light in time to stop tbe train.
3. They omit tbe rule of tbe prudent man. If tbe intestate knew there was no light at tbe switch, be also knew tbat be was running a first-class train on tbe main line, and tbat it was tbe duty of tbe defendant to have tbe track clear five minutes before bis train reached tbe switch, and if there was danger to turn the red light to tbe main line. He bad tbe right to assume tbat these duties bad been performed, and under tbe circumstances tbe question was raised as to whether be acted as a man of ordinary prudence, which it was for tbe jury to decide. Tbe instructions require tbe court to decide, as matter of law, tbat tbe facts embodied in them constitute contributory negligence.
4. They omit tbe element of proximate cause. If tbe intestate knew there was no light at tbe switch and was running in excess of six miles an bour, be was negligent, but it is not every act of negligence, on tbe part of the plaintiff, tbat is contributory negligence in its legal sense.
It is not contributory -unless it is tbe real cause of tbe injury, nor is it so if tbe defendant, by tbe exercise of ordinary care, can avert tbe injury, notwithstanding tbe negligence of tbe plaintiff. There was evidence tbat an employee of tbe defendant was at tbe switch and knew it was broken wben the plaintiff’s intestate was distant one and one-fourth miles, that this em[108]*108ployee could have turned tbe red light to tbe main line and failed to do so; tbat if be bad done so, it could have been seen in time for tbe intestate to stop bis train at tbe rate be was going.
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Allen, J.,
after stating the case. . The first and second exceptions are to the refusal to allow a witness for the defendant, J. M. Donlan, an engineer, to answer the following questions:
First. If the jury shall find from the evidence that Mr. Boney’s train had been running at six miles per hour at the time it collided with the train, and the other train with which it collided was running slowly in the same direction, what would have been the effect on the train and engine on which Mr. Boney was riding?
[105]*105Second. If tbe jury shall find from the evidence that the engine and train which were being driven by Mr. Boney had been running at the speed of six miles per hour or less at the time it struck the train of Conductor Cole, what would have been the effect of such collision and how greatly would it have damaged the train and imperiled the lives of those on board?
We do not think the ruling was erroneous. If the questions were asked of the witness as an expert, there is no finding or admission that the witness was an expert. As was said by Justice Manning, in Lumber Co. v. R. R., 151 N. C., 220: “We cannot assume that his Honor, in this view, found the witness to be an expert, and then excluded the question and answer. In order that the witness might testify when objection is made, there must be either a finding by the court, or an admission or waiver by the adverse party that the witness was so qualified.”
The questions were also not permissible to elicit the opinion of the witness, as he was not present at the time of the occurrence and the jurors were as competent to form an opinion upon the facts as he. Taylor v. Security Co., 145 N. C., 385; Wilkinson v. Dunbar, 149 N. C., 20.
Again it does not appear that the defendant has been prejudiced by the refusal to permit the questions to be answered, as it is not shown in the record what would have been the answer of the witness, or what the defendant expected to prove by him.
The fourth, fifth and sixth prayers for instruction requested by the defendant were as follows:
Fourth. If the jury shall find that Boney was running his train at a greater rate of speed than six miles per hour at the time he passed the switch, then he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
Fifth. If the jury shall find that Boney did not obey the rule set forth in the time-table, that he must approach the middle-yard cross-over and the switch where the accident occurred with his train under full control and expecting to find the track occupied, but in disregard of this rule approached the said switch and cross-over without having his train under full control, then he was guilty of contributory negligence, and the jury must answer the second issue, Yes.
[106]*106Sixth. Even though the jury shall find that the defendant was guilty of negligence, yet if they shall also find that Boney did not obey the rule set forth in the time-table as to the rate of speed and manner in which he should approach the middle-yard crossing and switch where the accident occurred, then he was guilty of contributory negligence, and the jury must answer the second issue, Yes.
His Honor' gave these instructions, except he added to each the element of proximate cause, Avhich we think he ought to have done. The question of proximate cause will be considered in discussing other exceptions appearing in the record. The defendant relied principally on its motion to nonsuit, and the exceptions to the refusal to give the following instructions:
Seventh. That 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.
Ninth. That it was the duty of Mr. Boney, engineer, to know the situation and location of the switches leading into the main line of the South Rocky Mount yards, and to observe whether the said switches were lighted and the signals indicated by it, and if the jury shall find from the evidence that the switch lamp at the place of accident was not lighted either with red or white lights, then it became the duty of Mr. Boney, deceased, to. stop his engine and ascertain the cause, and to ascertain if it was safe to pass over the track at that point, and if he failed to do so, he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
There are several reasons for refusing to give these instructions :
1. The answer does not allege that the plaintiff’s intestate was guilty of contributory negligence in that he failed to perform the duties imposed upon him in the instructions, and a defend[107]*107ant must allege and prove contributory negligence. Stewart v. R. R., 137 N. C., 690. A liberal construction of tbe answer discloses tbat it alleges two acts of contributory negligence and no other.
(1) Tbat tbe intestate was disobeying a rule by running in excess of six miles an bour.
(2) Tbat be failed to stop wben tbe lantern was waved.
2. Tbe instructions imposed tbe duty without qualification to know tbe exact location of tbe switch in tbe absence of a light, and to note tbat tbe light was not there. Tbe injury occurred in tbe night on a yard of tbe defendant where there were numerous tracks and switches, and it was for tbe jury to say, under these circumstances, whether be could, by tbe exercise of ordinary care, have discovered tbe absence of a light in time to stop tbe train.
3. They omit tbe rule of tbe prudent man. If tbe intestate knew there was no light at tbe switch, be also knew tbat be was running a first-class train on tbe main line, and tbat it was tbe duty of tbe defendant to have tbe track clear five minutes before bis train reached tbe switch, and if there was danger to turn the red light to tbe main line. He bad tbe right to assume tbat these duties bad been performed, and under tbe circumstances tbe question was raised as to whether be acted as a man of ordinary prudence, which it was for tbe jury to decide. Tbe instructions require tbe court to decide, as matter of law, tbat tbe facts embodied in them constitute contributory negligence.
4. They omit tbe element of proximate cause. If tbe intestate knew there was no light at tbe switch and was running in excess of six miles an bour, be was negligent, but it is not every act of negligence, on tbe part of the plaintiff, tbat is contributory negligence in its legal sense.
It is not contributory -unless it is tbe real cause of tbe injury, nor is it so if tbe defendant, by tbe exercise of ordinary care, can avert tbe injury, notwithstanding tbe negligence of tbe plaintiff. There was evidence tbat an employee of tbe defendant was at tbe switch and knew it was broken wben the plaintiff’s intestate was distant one and one-fourth miles, that this em[108]*108ployee could have turned tbe red light to tbe main line and failed to do so; tbat if be bad done so, it could have been seen in time for tbe intestate to stop bis train at tbe rate be was going.
If so, there was evidence tbat tbe failure to turn tbe red light to tbe main line was tbe proximate cause of tbe death of tbe intestate, and tbat notwithstanding tbe negligence of tbe plaintiff in failing to stop if be knew there was no light at tbe switch, tbat tbe defendant, by tbe exercise of ordinary care, could have averted tbe injury. It may be said tbat under tbe rules of tbe defendant, tbe absence of a light at tbe switch is notice of danger, and tbat if tbe intestate did not regard this, tbe display of a red light would not have caused him to stop. There is force in this view, but there may be a difference of opinion as to tbe conclusion. We think it would not be unreasonable to accept tbe other view, and conclude tbat if tbe intestate knew there was no light at tbe switch, be also knew it was tbe duty of tbe defendant to keep tbe track clear five minutes before bis train reached tbe switch, and to display tbe red light if there was danger, and knowing these facts, be might proceed in tbe absence of a light, when be would not do so in tbe face of a red light, giving positive notice of danger.
Tbe absence of a light would ordinarily indicate nothing except a failure to light tbe lamp, while a red light is a signal of danger.
“Tbe law does not presume contributory negligence. It must be alleged and proven, and tbe defendant must show such facts, either omissions of such cautions or the doing of such acts, from which only one inference, to-wit, tbe plaintiff's negligence, can be drawn, by men of ordinary reason and intelligence.” Farris v. R. R., 151 N. C., 489.
We also conclude tbat tbe motion to nonsuit ought to have been denied. Tbe open switch and tbe collision raise a presumption of negligence (Stewart v. R. R., 137 N. C., 689, and cases there cited), and where such a presumption is raised or a prima facie case is established, tbe jury is justified in finding negligence, unless “satisfied upon all tbe evidence in tbe case [109]*109that in fact there is no negligence,” as was said by Justice Walker, at this term, in Kornegay v. R. R.
There is also other evidence of negligence on the part of the defendant; two switches open or broken; the failure to maintain lights at the switch; the failure to keep the track clear, and the failure to notify the plaintiff’s intestate of danger, as he approached the switch.
There is also evidence of negligence on the part of the intestate.
TTnder these circumstances, the fact upon which the decision of the case turned was proximate cause, and if there was a phase of the evidence that would justify the jury in finding that, although the plaintiff was negligent, the defendant had the last opportunity, the last clear chance to avoid the injury, it was the duty of the judge to submit the question to them. Edge v. R. R., 153 N. C., 215, and cases there cited.
"We have seen that the evidence presented this question. The jury could find from the evidence that an employee of the defendant was at the switch, and knew it was broken, and appreciated the danger to the approaching train when it was distant one and one-fourth miles; that he could have turned the red light to the main line in an instant, and that this would have been a warning of danger; that he failed to do so; that if he had done so the plaintiff’s intestate could have seen the red light in time to stop the train before it reached the switch; that instead of doing so, he gave no signal until the train was in twenty-five yards of the switch, and then by waving a lantern some distance from the track and not across it, and if so, the jury could find that the negligence of the defendant was the proximate cause of the death of the intestate. '
The jury could also reasonably find from the evidence that Rule 27, saying that “the absence of a signal at a place where a signal is usually displayed must be regarded as a stop signal,” did not affect the right to recover because there was evidence that there was a light at the switch, and that the white light, a notice of safety, was turned to the main line. The plaintiff’s intestate was killed about 2 o’clock a. m. J. 0. Mercer, a wit[110]*110ness for tbe defendant, testified that he went to the switch at 8 o’clock a. mv and that the white glass was turned to the main line. Between 2 o’clock and 6 o’clock the switch, lamps and yards were in the possession and under the control of, the agents of the defendant, and no witness was produced to show any change in conditions or that the lamp was touched after 2 o’clock after the time Mercer saw the white glass turned to the main line.
The case was submitted to the jury with great care, and the contentions of the defendant were fairly presented. The presiding judge, among other things, charged the jury:
“If the jury shall find that witness Cole waved his lantern across the track of the approaching train of which Boney was engineer and Boney saw the signal, or with the exercise of ordinary care could have seen it, it was his duty to have stopped the engine, and if he could have done so in time to avoid his injury, then he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
“If the jury shall find that Boney was running his train at a greater rate of speed than six miles per hour at the time he passed the switch, and shall further find that this was the proximate cause of the injury, then he was guilty of contributory negligence, and the jury will answer the second issue, Yes.
“If the jury shall find that Boney did not obey the rules set forth in the time-table, that he must approach the middle-yard cross-over and the switch where the accident occurred with his train under full control and expecting to find the track occupied, but in disregard of this rule approached the said switch and cross-over without having his train under full control (and this was the proximate cause of the injury), then he was guilty of contributory negligence, and the jury must answer the second issue, Yes.
“Even though the jury shall find that the defendant was guilty of negligence, yet if they shall find that Boney did not obey the rules set forth in the time-table as to the rate of speed and manner in which he should approach the middle-yard crossing and switch where the accident occurred (and this was the [111]*111proximate cause of tie injury), then lie was guilty of contributory negligence, and the jury must answer the second issue, Yes.”
We have examined each exception and find no error.
No error.