The evidence of the plaintiff does not disclose how the killing of plaintiff’s intestate occurred. Only two theories arise from plaintiff’s evidence as to what happened:'
First, that the plaintiff’s intestate fell from the rear of a backing train upon the track; second, that plaintiff’s intestate jumped from the rear of the backing train to the track, stumbled, fell, and was run over by the train. There is no proof whatever that there was any defect in the appliance used at the time, -causing plaintiff’s ifatestate to fall, nor is there any proof of any negligent movement or jerki-ng of the train which precipitated him therefrom. The evidence, therefore, cannot support the first theory. Upon the other hand, if plaintiff’s intestate, in the discharge of his duty, jumped from the moving train upon the track and lost his balance, then the undisputed evidence discloses that he did so in plain and express violation of orders and instructions given him by his superiors.
There is a suggestion that the cross-ties were piled too high on the car from which plaintiff’s intestate jumped or fell, but the evidence further discloses that the cross-ties were not piled higher than usual. In any event plaintiff’s intestate was first seen in the center of the track, where it would be impossible for the engineer to have discovered his perilous situation.
In the final analysis, the evidence presents mere speculation and no more. “The rule is well settled that if there be no evidence or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue, or furnish more than material for mere conjecture, the court will not leave the issue to be passed on by the jury.” Seagrove v. Winston, 167 N. C., 207; S. v. Martin, 191 N. C., 404. Referring to this rule in Poovey v. Sugar Co., 191 N. C., 722, this Court says r “This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation.”
We hold therefore that the motion for nonsuit, duly made by the defendant, should have been allowed.
Reversed.