The defendant made timely motions for judgment of nonsuit and assigned as error the refusal of the court to allow them. The motions raised two questions: First, was the evidence sufficient to go to the jury on the issue of negligence? And, second, if so, did the evidence show that Jessie Fleming was guilty of contributory negligence as a matter of law?
“Negligence is not to be presumed from the mere fact that an accident has occurred.” Merrell v. Kindley, 244 N.C. 118, 95 S.E. 2d 671. “It is appropriate to say that no inference of negligence arises from the mere fact of an accident or injury.” Adams v. Service Co., 237 *669N.C. 136, 74 S.E. 2d 332. “Negligence is not presumed from the mere fact of injury or that the intestate was killed.” Whitson v. Frances, 240 N.C. 733, 83 S.E. 2d 879; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661; Ray v. Post, 224 N.C. 665, 32 S.E. 2d 168; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406; Pack v. Auman, 220 N.C. 704, 18 S.E. 2d 247. “In order to establish actionable negligence the plaintiff must show: (1) That there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to the plaintiff under the circumstances under which they were placed; and (2) 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 the facts as they existed.” Whitt v. Rand, 187 N.C. 805, 123 S.E. 84. “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; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Denny v. Snow, 199 N.C. 773, 155 S.E. 874. “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.” Mills v. Moore, supra.
Measured by the foregoing rules, was there enough evidence, when taken in the light most favorable to the plaintiff, to go to the jury on the issue of negligence? We may eliminate as without probative force the statement of Mrs. Blulah Fleming that Twiggs was traveling 70 miles per hour. The facts and circumstances detailed by her clearly indicate lack of opportunity on her part to form such opinion of speed as would amount to evidence. Mr. Fleming was walking across the road behind the car in which she was sitting. She did not look to the rear until she heard tires as the brakes were applied. She looked back, saw Mr. Fleming in the middle of the road and the car seven or nine feet, or half the length of the courtroom behind the Fleming car. She looked away before the impact. “When a witness has had no reasonable opportunity to judge the speed of an automobile, it is error to permit him to testify in regard thereto.” S. v. Becker, 241 N.C. 321, 85 S.E. 2d 327, citing Anno. 70 A.L.R. 547; Anno. 94 A.L.R. 1192; Davidson v. Beacon Hill Taxi Service, 278 Mass. 540.
The following is a quotation from the Davidson case: “The intervening time from when he first saw it (approaching car) until the plaintiff was struck could have been at most only a few seconds. During that time he was running to escape being struck. It is inconceivable that he could have any intelligent opinion as to the speed of the taxicab in *670those circumstances. His estimate of speed was too unreliable and untrustworthy to aid the jury upon that question. It was of no value as evidence.”
In the Becker case, Mrs. Phillips observed the moving car for about 15 feet. Commenting on her evidence as to the speed of the car, Justice Denny for this Court said: “In our opinion, under the facts and circumstances disclosed by the evidence of Mrs. Phillips, she had no reasonable opportunity to judge the speed of the defendant’s car, and her evidence with respect thereto was without probative value.”
Apart from the testimony of Mrs. Fleming, there was no evidence of excessive speed. The road was straight and level. The brakes were applied before the car made contact with plaintiff’s intestate. The tire marks on the highway were 40 to 50 feet in length, clearly indicating the car traveled for a shorter distance after contact. Plaintiff’s witness Ledford saw the car for several hundred yards. He fixed the speed at 45 to 50 miles per hour. We conclude there was no evidence of speed in the case.
The accident occurred in the open country where, nothing else appearing, the defendant had the right to drive 55 miles per hour. He had the right to pass the Fleming car parked half on and half off the hard surface. He was approaching from the rear and it was therefore necessary for him to pass to the left of the parked vehicle. It was his duty to watch the Fleming car for possible movement into his lane of traffic. The Ledford car was meeting him. It was some distance away. It was his duty to watch it.
There was no road intersection and no crosswalk for pedestrians at the place of the accident. Twiggs had the right to assume and to act on the assumption that any pedestrian on the highway would recognize that the driver of the automobile had the right of way and would not attempt to cross until such movement could be made in safety. There was nothing in the evidence to indicate that the defendant was put on notice that Mr. Fleming would attempt the crossing. Likewise, there is nothing in the evidence to indicate the defendant in the exercise of due care could have avoided the injury after ascertaining the deceased had exposed himself.
We conclude the evidence was insufficient to support an issue of negligence. This conclusion makes unnecessary any discussion of contributory negligence. The Superior Court of Madison County should have allowed the motion for nonsuit, and its failure to do so makes it necessary that the judgment be, and the same is
Johnson, J., not sitting.