At the close of plaintiff’s evidence, the defendant made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The court below sustained the motion, and in this we can see no error. The evidence must be taken in the light most favorable to plaintiff. The exceptions and assignments of error to the exclusion of certain evidence, as follows, cannot be sustained: (1) In regard to Ben Carswell having an understanding that the deceased, Joe Allman, Jr., would meet him near the culvert. This throws no light on the controversy as to how *663plaintiff’s intestate was killed. (2) “If be bad been standing on track could you have seen him?” was a question propounded to Carswell. (3) “Were you expecting anyone there at that time?” Question propounded to Carswell. Conceding, but not deciding, that the above questions were competent, the record does not disclose what the answers of the witness would have been, so that this Court could determine their relevancy, competency and materiality. S. v. Brewer, 202 N. C., at p. 193. There is no evidence sufficient to be submitted to the jury that the plaintiff’s intestate was asleep or drunk on the track, or in a helpless condition on the track, or oblivious or otherwise insensible of danger. The plaintiff’s intestate was not at a crossing. The headlight of defendant’s engine was burning, throwing the light a far distance.
In Davis v. R. R., 187 N. C., at p. 148, citing many authorities, speaking to the subject: “The decisions in this State have been insistent upon the principle that a pedestrian voluntarily using a live railroad track as a walkway for his own convenience is required at all time 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 this 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.” Henry v. R. R., ante, 277.
In Demvy v. Snow, 199 N. C., at p. 774, it is written: “A verdict or finding must rest upon facts proved, or at least upon facts of which there is substantial evidence, and cannot rest upon mere surmise, speculation, conjecture, or suspicion. There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., pp. 51-2; S. v. Johnson, 199 N. C., 429; Shuford v. Scruggs, 201 N. C., at p. 687.
The death of plaintiff’s intestate was a deplorable tragedy, but there is no sufficient evidence to show that plaintiff’s intestate was in such a condition, on or near the track, that it was the duty of defendant’s engineer, in the exercise of due care, to have seen him and to have resolved all doubts in favor of life and limb, short of imperiling the lives of persons on the train, and to use every reasonable means necessary to stop and avoid the injury. The material allegations of the complaint are not supported by the evidence. The evidence is not sufficient to bring plaintiff within the principle laid down in Hill v. R. R., 169 N. C., 740. The judgment of the court below is
Affirmed.