Taking all the evidence shown in the record on this appeal in, the light most favorable to plaintiff, and giving to him the benefit of every reasonable inference therefrom, distressing though the situation is, we are unable to find error in the judgment below. Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329.
In order to establish actionable negligence: “The plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed,” Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326, and cases cited.
Negligence is not presumed from the mere fact of injury or that the intestate was killed. Austin v. R. R., 191 N. C., 319, 148 S. E., 446; Henry v. R. R., 203 N. C., 217, 165 S. E., 698; Rountree v. Fountain, supra; 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, *30173 S. E., 43; Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837; Mercer v. Powell, 218 N. C., 642.
There must be legal evidence of every material fact necessary to support the verdict and the verdict “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., 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, 163 S. E., 981; Rountree v. Fountain, supra; Cummings v. R. R., supra; Mercer v. Powell, supra.
If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue is a matter of law.
The alleged negligence relied upon and charged by plaintiff in the present case is that the defendants, in operating the truck in question along the road, failed to keep a proper lookout, which failure proximately caused the death of the intestate.
It is a general rule of law, even in absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty, it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. Murray v. R. R., supra.
These principles applied to the evidence offered leaves the instant case in the realm of speculation. Assuming that there is sufficient evidence to show that the intestate was stricken by the truck of the defendant, there is no evidence as to what part of the truck struck her. No one saw the intestate in the road at any time before she was stricken. How long she had been there no one knows. The physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. When did she enter the road? Was it at a time when the driver of the truck, seated in the cab on the opposite side from the Mills yard, could have seen her ? Or, did she run under and into the trailer after the cab passed? Was she stricken by the front of the truck, or was she stricken by some part' of the trailer ? The evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest on mere conjecture.
In the case of Rountree v. Fountain, supra, this Court sets forth principles of law applicable and applies same to a factual situation similar to that here. There a four-year-old child was run over by an oil *31truck as it backed into an alley between a store building and the lot on which the child resided with his mother. The truck backed into the alley to transfer oil from the tank on the truck to the tank in the store. There was no objection to defendant using the alley, though it as well as the garage at the north end of it, were rented to the mother of the intestate along with the dwelling. On the morning of the accident the child went across the alley to the home of a neighbor, who gave him a small box and left him in her yard picking up berries under a magnolia tree, and went across the street. A few minutes afterward an employee of defendant backed a gasoline or oil truck into the alley, suddenly left the truck, and went to the owner of the store and exclaimed, “Come here, I have killed a child.” The body was found about three feet from the sidewalk and about the same distance from the store. Blood was on the sand; nearby was the box. There were bruises on the child’s body and his nose was bleeding. The cause of his death was a fractured skull. Adams, J., speaking for the Court, after stating facts and applicable principles of law, said: “No one saw the deceased in the alley at any time before the impact. How long he had been there no one knows. There is no evidence he was there when the truck began to move backward. When last seen alone he was on the Southerland lot. When did he leave the magnolia tree? Had he been in the alley long enough for the driver to see him and avert the injury, or did he at the fatal moment rush into the alley immediately in front of the advancing truck? The witnesses do not inform us, and at this point the plaintiff’s case fails him. In the absence of evidence we cannot conclude that the deceased went into the alley at any particular time. Negligence is not presumed from the mere fact that he was killed; something more is required. The plaintiff had the burden of establishing the proximate causal relation of the alleged negligence to the injury and death, and in his search for it he is led into the uncertain realm of conjecture.”
Paraphrasing that case, the probabilities arising from a fair consideration of the evidence in the instant case afford no reasonable certainty on which to ground a verdict.
The judgment below is