after stating the case: Conceding the sufficiency of the evidence to permit the inference that plaintiff’s intestate was killed by defendant’s passing freight train (Cox v. R. R., 123 N. C., 604, 31 S. E., 348), still the record is barren of any evidence of actionable negligence on the part of the defendant. Negligence is not presumed from the mere fact of an injury. Austin v. R. R., 197 N. C., 319, 148 S. E., 446; *720 Miller v. Holland, 196 N. C., 739, 147 S. E., 8; Lamb v. Boyles, 192 N. C., 542, 135 S. E., 464; Isley v. Bridge Co., 141 N. C., 220, 53 S. E., 841.
What was the condition of the deceased when he was struck ? Was he in a position of peril when seen by the engineer? or in the apparent X^ossession of his faculties? Tredwell v. R. R., 169 N. C., 694, 86 S. E., 617. What duty did the defendant owe to plaintiff’s intestate which it failed to discharge? And was the breach of such duty the proximate cause of his death? Henry v. R. R., 203 N. C., 277, 165 S. E., 698. These are questions which are left in the field of speculation by plaintiff’s evidence.
Plaintiff says the failure to give warning of the train’s approach was negligence. Even so, but was such negligence the proximate cause of plaintiff’s intestate’s death? On this point the proof is fatally wanting in sufficiency to establish liability. Allman v. R. R., 203 N. C., 660; Pharr v. R. R., 133 N. C., 610, 45 S. E., 1021; 52 C. J., 730. Negligence is not actionable unless it is the proximate cause of an injury. Hurt v. Power Co., 194 N. C., 696, 140 S. E., 730. Moreover, the evidence tends to show foul play on the part of an assailant, as strongly as it tends to establish death by wrongful act, neglect or default of the defendant. Davis v. R. R., 170 N. C., 582, 87 S. E., 745.
The prevailing rule is, that negligence is not presumed from mere proof of an accident on or near a railroad track. 22 R. C. L., 981. Thus, it was held in Ward v. So. Pac. Co., 25 Ore., 433, 36 Pac., 166, 23 L. R. A., 715 (as stated in the third head-note, which accurately digests the opinion) : “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.”
In a case practically on all-fours with the present one, Davis v. R. R., 187 N. C., 147, 120 S. E., 827, Hoke, J., reviewed the pertinent authorities in a well-considered opinion, and we are content to rest our decision on the Davis case without further elaboration. The cases of Allman v. R. R., supra; Pharr v. R. R., supra, and Clegg v. R. R., 132 N. C., 292, 43 S. E., 836, are also directly in point; likewise the case of Elliott v. Ry., 130 So. (Ala.), 775. Compare Hill v. R. R., 169 N. C., 740, 86 S. E., 609. The judgment of nonsuit was properly entered.