This case is based on negligence. Tbe burden rests on the plaintiff to produce evidence sufficient to establish tbe two essential elements of actionable negligence: one, that tbe defendants were guilty of a negligent act or omission; and two, that such act or omission proximately caused tbe death of decedent. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670.
“Negligence does not create liability unless it is tbe proximate cause of injury, and foreseeability is an essential of proximate cause.” Wood v. Telephone Co., 228 N.C. 605, 46 S.E. 2d 717.
Moses Garland bad not been in tbe custody of tbe officers for sometime before be was killed. Oases concerned with injuries to- prisoners while in custody of a sheriff or officer of tbe law, like Dunn v. Swanson, 217 N.C. 279, 7 S.E. 2d 563, are not in point. Did be step in front of tbe train, did be attempt to board a moving-train, or was be down on tbe railroad tracks, when struck? Tbe evidence gives no answer. Had be partially or practically sobered up before death? ~We do not know, for tbe Record is silent as to tbe hour of bis death. The exact circumstances of bis death are left in tbe realm of speculation and conjecture. Even if we concede, which we do not, that tbe officers were negligent in not locking the doors of tbe patrol car to prevent Garland getting out, or in not keeping him guarded in tbe car, or in not searching immediately for him when they *609beard be bad escaped, or in any other respect, we are of opinion, and so bold, that sucb negligence was not a proximate canse of Moses Garland’s untimely death, that is “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 a result was probable under all the facts as they existed.” Whitt v. Rand, 187 N.C. 805, 123 S.E. 84.
There was no error in entering the judgment of nonsuit, and it is therefore
Babnhill, C. J., and Devist, J., toot no part in the consideration or decision of this case.