WiNbobNE, J.
Tbis question determines the controversy on this appeal: Is there sufficient evidence to take the case to the jury under the doctrine of last clear chance which is invoked by plaintiff? The court below said “No.” With this answer we are in agreement.
The principles of law here involved were recently restated and applied in the case Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837. What is said there is applicable here.
At the outset let it be noted that this is not a case of a railroad crossing accident. To the contrary, plaintiff contends that at the time her intestate was struck by a train of defendants he was down in an apparently helpless condition on the railroad track east of Southerland Crossing.
No presumption of negligence on the part of defendant railroad arises from the mere fact that the mangled body of plaintiff’s intestate was found on the track. This is the uniform holding in the decisions of this Court. Upton v. R. R., 128 N. C., 173, 38 S. E., 736; Clegg v. R. R., 132 N. C., 292, 43 S. E., 826; Austin v. R. R., 197 N. C., 319, 148 S. E., 446; Henry v. R. R., 203 N. C., 277, 165 S. E., 698; Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329; Ham v. Fuel Co., 204 N. C., 614, 169 S. E., 180; Harrison v. R. R., 204 N. C., 718, 169 S. E., 637; Fox v. Barlow, 206 N. C., 66, 173 S. E., 43; Cummings v. R. R., supra.
In Harrison v. R. R., supra, this is said to be the prevailing rule, citing 22 R. C. L., 981, and continuing, “Thus it was held in Ward v. Sou. Pac. Co., 25 Ore., 433, 36 Pac., 166, 23 L. R. A., 715 (as stated in the third headnote, which accurately digests the opinions) : ‘The finding of the body of a child on a railroad track, where it had been struck'by a train, raises no presumption of negligence on the part of the company, although the track was straight and clear, where there is nothing to show the circumstances of the accident, or how long the child had been on the track when struck.’ ”
As stated in Davis v. R. R., 187 N. C., 147, 120 S. E., 827: “The decisions in this State have been very insistent upon the principle that a pedestrian voluntarily using a line of railroad track as a walkway for his own convenience is required at all times to look and to listen, and to take note of dangers that naturally threaten, and which such action on his part would have disclosed, and if in breach of his duty and by reason of it he fails to avoid a train moving along the track, and is run upon and killed or injured, his default will be imputed to him for contributory negligence and recovery is ordinarily barred.”
The doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence, and no issue with respect thereto must be submitted to the jury unless there is [649] evidence to support it. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Cummings v. R. R., supra. When tbe doctrine of last clear cbanee is relied upon, tbe burden is on tbe plaintiff to show by proper evidence:
(1) Tbat at tbe time tbe injured party was struck by a train of defendant be was down, or in an apparently helpless condition on tbe track; (2) tbat tbe engineer saw, or, by tbe exercise of ordinary care in keeping a proper lookout could bave seen tbe injured party in sucb condition in time to bave stopped tbe train before striking bim; and (3) tbat tbe engineer failed to exercise sucb care, as tbe proximate result of wbieb tbe injury occurred. Upton v. R. R., supra; Clegg v. R. R., supra; Henderson v. R. R., 159 N. C., 581, 75 S. E., 1092; Smith v. R. R., 162 N. C., 29, 77 S. E., 966; Davis v. R. R., 187 N. C., 147, 120 S. E., 827; George v. R. R., 215 N. C., 773, 3 S. E. (2d), 286; Cummings v. R. R., supra.
Tbe doctrine of last clear cbance does not apply in cases where tbe trespasser or licensee upon tbe track of a railroad, at tbe time, is in apparent possession of bis strength and faculties, tbe engineer of tbe train which produces tbe injury having no information to tbe contrary. Under sucb circumstances tbe engineer is not required to stop tbe train or to even slacken its speed, for tbe reason be may assume until tbe very moment of impact tbat sucb person will use bis faculties for bis own protection and leave tbe track in time to avoid injury. Redmon v. R. R., supra; Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Pharr v. R. R., 133 N. C., 610, 45 S. E., 1021; Reep v. R. R., 210 N. C., 285, 186 S. E., 318; Lemings v. R. R., 211 N. C., 499, 191 S. E., 39; Sherlin v. R. R., 214 N. C., 222, 198 S. E., 640.
There must be legal evidence of every material fact necessary to support tbe issue, and tbe verdict thereon “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of tbe evidence, and not a mere guess, or on possibilities.” 23 C. J., 51; S. v. Johnson, 199 N. C., 429, 154 S. E., 730; Denny v. Snow, 199 N. C., 773, 155 S. E., 874; Shuford v. Scruggs, 201 N. C., 685, 161 S. E., 315; Allman v. R. R., 203 N. C., 660, 166 S. E., 981. See, also, Poovey v. Sugar Co., 191 N. C., 722, 133 S. E., 12.
In tbe Poovey case, supra, it is said: “ 'The rule is well settled tbat if there be no evidence, or if tbe evidence be so slight as not reasonably to warrant tbe inference of tbe fact in issue or furnish more than materials for a mere conjecture, tbe court will not leave tbe issue to be passed on by tbe jury.’ Brown v. Kinsey, 81 N. C., 244; Liquor Co. v. Johnson, 161 N. C., 77; S. v. Prince, 182 N. C., 790; S. v. Martin, ante, 404. This rule is both just and sound. Any other interpretation of tbe law would unloose a jury to wander aimlessly in tbe field of speculation.”
Tested by these principles, tbe evidence offered with respect to tbe movements of tbe intestate, after be was last seen at Bryant’s filling [650] station, a mile and a balf to, two miles west of Southerland Crossing, before 12 o’clock on the night preceding the finding of his mangled body on the railroad, is uncertain, conjectural and speculative. The physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. The crucial questions are these: In what position was intestate when struck by the train? If down on the track, or in an apparently helpless condition, how long had he been in that position before he was struck? As to these questions the evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in conjecture.
The finding of burned match stems, cigarette stems and a cigarette package outside of the rail east of the dirt road adds no certainty to the uncertain factual situation. In the first place, the record fails to show that intestate smoked cigarettes. In the second place, if it had been shown that he did, isn’t it more probable that while smoking he would have been standing or sitting than lying down? If he had been smoking while lying down inside the track, is it probable that all the match ends and cigarette ends and the cigarette package should have been thrown outside the rail ? Certainly one guess is as good as another —the net result being a guess after all.
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WiNbobNE, J.
Tbis question determines the controversy on this appeal: Is there sufficient evidence to take the case to the jury under the doctrine of last clear chance which is invoked by plaintiff? The court below said “No.” With this answer we are in agreement.
The principles of law here involved were recently restated and applied in the case Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837. What is said there is applicable here.
At the outset let it be noted that this is not a case of a railroad crossing accident. To the contrary, plaintiff contends that at the time her intestate was struck by a train of defendants he was down in an apparently helpless condition on the railroad track east of Southerland Crossing.
No presumption of negligence on the part of defendant railroad arises from the mere fact that the mangled body of plaintiff’s intestate was found on the track. This is the uniform holding in the decisions of this Court. Upton v. R. R., 128 N. C., 173, 38 S. E., 736; Clegg v. R. R., 132 N. C., 292, 43 S. E., 826; Austin v. R. R., 197 N. C., 319, 148 S. E., 446; Henry v. R. R., 203 N. C., 277, 165 S. E., 698; Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329; Ham v. Fuel Co., 204 N. C., 614, 169 S. E., 180; Harrison v. R. R., 204 N. C., 718, 169 S. E., 637; Fox v. Barlow, 206 N. C., 66, 173 S. E., 43; Cummings v. R. R., supra.
In Harrison v. R. R., supra, this is said to be the prevailing rule, citing 22 R. C. L., 981, and continuing, “Thus it was held in Ward v. Sou. Pac. Co., 25 Ore., 433, 36 Pac., 166, 23 L. R. A., 715 (as stated in the third headnote, which accurately digests the opinions) : ‘The finding of the body of a child on a railroad track, where it had been struck'by a train, raises no presumption of negligence on the part of the company, although the track was straight and clear, where there is nothing to show the circumstances of the accident, or how long the child had been on the track when struck.’ ”
As stated in Davis v. R. R., 187 N. C., 147, 120 S. E., 827: “The decisions in this State have been very insistent upon the principle that a pedestrian voluntarily using a line of railroad track as a walkway for his own convenience is required at all times to look and to listen, and to take note of dangers that naturally threaten, and which such action on his part would have disclosed, and if in breach of his duty and by reason of it he fails to avoid a train moving along the track, and is run upon and killed or injured, his default will be imputed to him for contributory negligence and recovery is ordinarily barred.”
The doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence, and no issue with respect thereto must be submitted to the jury unless there is [649] evidence to support it. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Cummings v. R. R., supra. When tbe doctrine of last clear cbanee is relied upon, tbe burden is on tbe plaintiff to show by proper evidence:
(1) Tbat at tbe time tbe injured party was struck by a train of defendant be was down, or in an apparently helpless condition on tbe track; (2) tbat tbe engineer saw, or, by tbe exercise of ordinary care in keeping a proper lookout could bave seen tbe injured party in sucb condition in time to bave stopped tbe train before striking bim; and (3) tbat tbe engineer failed to exercise sucb care, as tbe proximate result of wbieb tbe injury occurred. Upton v. R. R., supra; Clegg v. R. R., supra; Henderson v. R. R., 159 N. C., 581, 75 S. E., 1092; Smith v. R. R., 162 N. C., 29, 77 S. E., 966; Davis v. R. R., 187 N. C., 147, 120 S. E., 827; George v. R. R., 215 N. C., 773, 3 S. E. (2d), 286; Cummings v. R. R., supra.
Tbe doctrine of last clear cbance does not apply in cases where tbe trespasser or licensee upon tbe track of a railroad, at tbe time, is in apparent possession of bis strength and faculties, tbe engineer of tbe train which produces tbe injury having no information to tbe contrary. Under sucb circumstances tbe engineer is not required to stop tbe train or to even slacken its speed, for tbe reason be may assume until tbe very moment of impact tbat sucb person will use bis faculties for bis own protection and leave tbe track in time to avoid injury. Redmon v. R. R., supra; Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Pharr v. R. R., 133 N. C., 610, 45 S. E., 1021; Reep v. R. R., 210 N. C., 285, 186 S. E., 318; Lemings v. R. R., 211 N. C., 499, 191 S. E., 39; Sherlin v. R. R., 214 N. C., 222, 198 S. E., 640.
There must be legal evidence of every material fact necessary to support tbe issue, and tbe verdict thereon “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of tbe evidence, and not a mere guess, or on possibilities.” 23 C. J., 51; S. v. Johnson, 199 N. C., 429, 154 S. E., 730; Denny v. Snow, 199 N. C., 773, 155 S. E., 874; Shuford v. Scruggs, 201 N. C., 685, 161 S. E., 315; Allman v. R. R., 203 N. C., 660, 166 S. E., 981. See, also, Poovey v. Sugar Co., 191 N. C., 722, 133 S. E., 12.
In tbe Poovey case, supra, it is said: “ 'The rule is well settled tbat if there be no evidence, or if tbe evidence be so slight as not reasonably to warrant tbe inference of tbe fact in issue or furnish more than materials for a mere conjecture, tbe court will not leave tbe issue to be passed on by tbe jury.’ Brown v. Kinsey, 81 N. C., 244; Liquor Co. v. Johnson, 161 N. C., 77; S. v. Prince, 182 N. C., 790; S. v. Martin, ante, 404. This rule is both just and sound. Any other interpretation of tbe law would unloose a jury to wander aimlessly in tbe field of speculation.”
Tested by these principles, tbe evidence offered with respect to tbe movements of tbe intestate, after be was last seen at Bryant’s filling [650] station, a mile and a balf to, two miles west of Southerland Crossing, before 12 o’clock on the night preceding the finding of his mangled body on the railroad, is uncertain, conjectural and speculative. The physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. The crucial questions are these: In what position was intestate when struck by the train? If down on the track, or in an apparently helpless condition, how long had he been in that position before he was struck? As to these questions the evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in conjecture.
The finding of burned match stems, cigarette stems and a cigarette package outside of the rail east of the dirt road adds no certainty to the uncertain factual situation. In the first place, the record fails to show that intestate smoked cigarettes. In the second place, if it had been shown that he did, isn’t it more probable that while smoking he would have been standing or sitting than lying down? If he had been smoking while lying down inside the track, is it probable that all the match ends and cigarette ends and the cigarette package should have been thrown outside the rail ? Certainly one guess is as good as another —the net result being a guess after all.
Likewise, how and when the grass on the inside of the track came to be mashed down in the manner shown is uncertain and of no probative value. Was the grass mashed by the trampling of someone while standing, or while sitting on the rail? Was it caused by some person sitting or lying down? Or, did someone stop there to smoke and rest from the burden of a load being carried? If either or the other, when was it? Again, any guess is as good as another — a guess after all.
But, supposing the grass was pressed down by the intestate lying there, when was it with regard to the time of the approach of the train that crushed the body? Was he lying there next to the right rail as the train approached? If so, how long had he been there? To answer, calls for more speculation.
It is argued that the scuffed out place in the dirt of the road fill indicated that he was down. To be sure the body was necessarily down when the train passed over it, but the question is, in what position was intestate when struck, and how long had he been in that position ? The evidence is silent.
In fine, the probabilities arising from a fair consideration of all the evidence in the case afford no reasonable certainty on which to ground a verdict upon an issue of last clear chance.
Exceptions to evidence are untenable.
The judgment below is
Affirmed.