#### HOLLAND v. RAILROAD.

(Filed December 22, 1906).

Railroad — Flagman—Contributory Negligence.

In an action to recover damages for the alleged negligent killing of plaintiff's intestate from a rear-end collision on a siding, where the evidence shows that the intestate was employed by defendant as flagman, and that it was his duty, after his train had taken the siding, to lock the switch to the main track and stand near the switch and protect it and give the necessary signals to approaching trains so as to safeguard his own train, and that he did not perform this duty, and his negligence in this respect wai the immediate and sole causa of the collision by which he lost his life, the Court did not err in instructing the jury, if they believed the evidence, to find for the defendant.

ActioN by M. H. Holland, administrator of H. L. Holland, against Seaboard Air Line Eailway Company, beard by Judge Fred Moore and a jury, at the September Term, 1906, of the Superior Court of Moose.

Erom a judgment of nonsuit, the plaintiff appealed.

W. J. Adams and Seawell & Mclver for the plaintiff.

U. ■L. Spence, J. D. Shaw and Murray Allen for the defendant.

WalkeR, J.

The plaintiff brought this action to recover damages for the alleged negligent killing of his intestate. The evidence introduced by him tended to show that1, in October, 1902, a freight train known as Extra 578, which was proceeding southward from Hamlet, took the siding at Buckingham, and a short time thereafter a passenger train, which was also proceeding southward at a fast rate of speed, ran upon the siding, collided with the caboose, or shanty car, at the end of the freight train, and killed the intestate, H. L. Holland.

*436Tbe defendant’s evidence tended to show that the intestate was employed by the defendant on Extra 578 as flagman, and it was his duty, as such, not only to set the switch to the main track and lock it, so that trains going south could pass on the main line by the switch in safety, but to stand near the switch and protect it from outside interference and give the necessary signals, until the expected trains had passed that point. That the said duty he wholly failed to perform, and his negligence, in this respect, was the immediate and sole cause of the accident.

The usual issues as to negligence, contributory negligence, the last clear chance and damages were submitted to the jury. At the close of the evidence, the Court intimated that it would charge the jury “that if they believed the evidence as to the manner in which the intestate came to his death, the presumption of negligence which the law raises from the fact that one is killed by the collision of trains is rebutted, and they should answer the first issue (as to negligence) ‘No,’ ” and “if they believed the evidence relating to the alleged negligence of" the plaintiff’s intestate, they should answer the second issue (as to contributory negligence) ‘Yes.’ ” The Court also instructed the jury to answer the third issue (as to the last clear chance) “No.”

There is no material difference between the case as now presented and the same case as it was when before us at a former term. Holland v. Railroad, 137 N. C., 368. But if there is any difference at all, -it consists only in this, that at the former trial the plaintiff introduced the rules of the defendant company, showing what was the duty of the intestate with reference to the switch; and this further difference, that there is in this record clear and undisputed proof that the intestate had full knowledge of Bule T., which required him, after his train had taken the siding and cleared the main track, to stand near the switch and give the signals *437to approaching trains. It appears, therefore, from all of the testimony, that his duty was to lock the switch to the main track and then to stand by and see that the proper signals were given to trains moving on that track, so as to safeguard his own train. The evidence, if believed, shows that he did not perform this duty, and that in consequence of his failure to obey the rules, of which he had full knowledge, and the instructions of his superior, the conductor, to him when leaving Ealeigh, the terrible disaster resulted by which he lost his life.

The very facts we have here, or rather those which the evidence, if believed, tends to establish, are the same upon which this Court adjudged, in the former appeal, that the plaintiff could not recover, because his own negligence was the proximate cause of his death, and not the negligence of the defendant. We do not perceive any reason for reversing or modifying that conclusion, and especially should we not do so when the case for defendant is, if anything, stronger than it then appeared.

A party who loses in this Court cannot review its decision by a second appeal, as the proper and only way is by a petition to rehear. Kramer v. Railway Co., 128 N. C., 269; Pretzfelder v. Ins. Co., 123 N. C., 164; Perry v. Railroad, 129 N. C., 334; Wright v. Railway Co., 128 N. C., 77; Setzer v. Setzer, 129 N. C., 297; Jones v. Railroad Co., 131 N. C., 135; Green v. Green, at this term. There may perhaps be an exception to this well-settled rule, but if so, this case is certainly not within it.

In the former appeal, we said: “All things considered, the question at last is, Was the situation a safe one, if the intestate had kept the position assigned to him by the defendant at or near the switch, so that he could prevent any interference with it and guard against any resulting danger ? If so, his failure so to act was the proximate cause of his death, *438as it was tbe sole efficient canse. Tbe company bad provided a perfectly safe method for tbe management of its train at tbat point, wbicb if adopted would bave' saved tbe life of tbe intestate. As be alone disregarded it, and tbe engineer on No. 33 was not required to anticipate this negligence, bis untimely death is referred by tbe law to bis own fault in leaving bis post of duty at a critical moment. If be did not leave tbe switch open, but it was changed by some one else after be left bis place, or even by any accident, it could bave been readjusted to tbe main track by him if be bad been there, and No. 33 would bave passed and not bave taken tbe siding.” Holland v. Railroad, 137 N. C., 373. And again, at page 374: “Plaintiff’s witness, Conductor Simpson, testified tbat be instructed Holland tbat morning to change tbe switch and lock it to tbe main line when be beaded in and, in bis absence, to look out for tbe safety of tbe train. There was but one possible thing to do after locking the switch to tbe main line in order to further protect bis train, which was on tbe siding, and tbat was to watch tbe switch and see tbat it was not changed by any one else so as to endanger bis train. Tbe conductor further stated tbat be instructed him to look after tbe switches in bis absence. If be bad done this tbe accident would not bave occurred. There was only one inference to be drawn from tbe evidence, and tbat was against tbe plaintiff.”.

We can only add to what is there said, tbat tbe intestate was tbe sentinel appointed by tbe defendant to watch and guard tbe switch and forewarn incoming trains of any danger. He was tbe one man to* whose keeping bad been committed tbe safety of bis comrades in tbe company’s service and of bis employer’s property, and be was more responsible for it than any one else. He failed in tbe performance of bis duty at thé very moment when bis obedience to orders_ and bis vigilance were most required to prevent tbe resulting *439catastrophe. His negligence was ever present and the efficient and, indeed, dominant cause of his 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. Whitson v. Wrenn, 134 N. C., 86; Hicks v. Mfg. Co., 138 N. C., 319; Stewart v. Carpet Co., 138 N. C., 60; Biles v. Railroad, 139 N. C., 532.

We find no error in the record, and the judgment is affirmed.

No Error.