The appellants assign as error the refusal of the trial court to allow their motion for judgment as in case of nonsuit lodged when the plaintiff had introduced his evidence and rested his case, and renewed when all of the evidence was in. C. S., 567.
When viewed in the light most favorable to the plaintiff, as it must be upon a demurrer thereto, the evidence tends to show that the plaintiff’s intestate, while drunk, was upon the track of the defendant company about 2% miles east of Canton, and that the company’s freight train, operated by the individual defendants, while going in a westerly direction from Asheville to Canton, ran over the plaintiff’s intestate, thereby severing his right hand and crushing his left elbow, from which wounds he died; that the intestate “was lying with one elbow and hand on the track when the train came along”; that the track east of the place where the intestate was run over is practically straight for some distance and is down grade, that the train of the defendant company was composed of two engines and 37 cars, some loaded and some unloaded, and was running between 20 and 30 miles per hour and could have been stopped in 150 to 200 feet; that the place where the intestate was run over could be seen from down the track east 200 or 300 yards; that the train did not slow up or stop; that neither of the engineers nor other employees of the defendant company saw the intestate on the track.
While there is evidence that the intestate “was lying with one elbow and hand on the track when the train came along,” the evidence is silent as to how long the intestate had been in this position when he was run over. In fact, the appellee in his brief states, in reference to the testimony of Dr. Rich, by whom it was sought to show the position of the intestate when run over by the train, that “we point again to the fact *275that Dr. Ricb did not undertake, in any part of bis testimony or in any answer on direct or cross-examination, to say wben or bow long tbe deceased bad been upon tbe track before tbe train wbicb injured bim came along.”
Altbougb there is evidence tending to show that if be bad been down on tbe track a sufficient length of time tbe intestate could have been seen from tbe engine soon enough to have stopped tbe train and avoided running over bim, there is no evidence as to bow long be bad been in that position. Wben last seen by anyone tbe intestate was to tbe side of tbe track some 8 or 10 feet, in a drunken condition. It is just as reasonable and just as probable that tbe intestate staggered into tbe side of tbe moving train as it came by bim, as it is that be was prone and apparently helpless on tbe track before tbe train reached bim; and tbe burden is upon tbe plaintiff to do something more than balance probabilities.
As was said by Winborne, J., in Mercer v. Powell, 218 N. C., 642, in tbe most recent utterance of this Court upon tbe doctrine of tbe last clear chance wben sought to be applied in cases of this kind: “. . . tbe burden is upon tbe plaintiff to show by proper evidence: (1) That 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) that tbe engineer saw, or, by tbe exercise of ordinary care in keeping a proper lookout could have seen tbe injured party in such condition in time to have stopped tbe train before striking bim; and (3) that tbe engineer failed to exercise such care, as tbe proximate result of wbicb tbe injury occurred. Upton v. R. R., supra (128 N. C., 173, 38 S. E., 736); Clegg v. R. R., supra (132 N. C., 272, 43 S. E., 826); Henderson v. R. R., 159 N. C., 581, 75 S. E., 1092; Smith v. R. R., 162 N. C., 30, 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 (217 N. C., 127, 6 S. E. [2d], 837.)” See, also, Owens v. So. Ry. Co., 33 Fed. R. (2d), 870.
Since there is no evidence as to bow long tbe intestate was prone upon tbe track, tbe jury could not have found that tbe engineer saw, or by tbe exercise of ordinary care could have seen bim in such position and condition in time to have stopped tbe train before striking bim.
Tbe testimony of Lawton Johnson, corroborated by other evidence, to tbe effect that be was crossing tbe track about 50 yards west of tbe place where tbe intestate was run over as the train approached from tbe east, about three minutes before tbe train came, about 2% miles ahead of tbe train, that be looked east down tbe track and saw no one standing on tbe track, that be could have seen a person standing on tbe track at this place, but be could not have seen a person lying down on tbe track at this place, is no evidence that tbe intestate was there prone upon tbe *276track at that time. It is conceded that tbe intestate was prone upon tbe track wben run over, but as to wben be became prone upon tbe track tbe evidence is silent.
'While we bave considered tbe expert opinion given in answer to a hypothetical question by Dr. Rich to tbe effect that tbe intestate was lying down on tbe track wben tbe train came along we do not decide tbe question raised by an exception to its competency. We simply bold that even if it be conceded, without deciding, that such evidence is competent as has been held relative to expert opinion testimony based upon personal examination of tbe body and wounds thereon, McManus v. R. R., 174 N. C., 735, 94 S. E., 455, there is no evidence of tbe fact essential to eases of this nature that tbe deceased was down or apparently helpless on tbe track long enough to bave been seen by an engineer or other train operative soon enough to bave stopped tbe train in time to bave avoided running over him.
Entertaining, as we do, tbe opinion expressed relative to tbe demurrer to tbe evidence, it becomes supererogatory to discuss tbe other interesting questions presented by tbe able briefs filed in this case.
Tbe judgment of the Superior Court is