This is the question involved on this appeal, as *21stated in brief of plaintiffs: Did -the Superior Court commit error in granting defendants’ motion for judgment of nonsuit at the close of flhe plaintiffs’ evidence?
Taking the evidence offered by plaintiffs, as shown in the record of case on appeal, in the light moist favorable to the plaintiffs, giving to them the benefit of every reasonable intendment upon the evidencie and every reasonable -inference to be drawn therefrom, as is done in considering demurrer to the evidence, G.S. 1-183, a negative answer to this question is deemed proper.
In -an -action for recovery of damages for personal injury or for wrongful death from action-able negligence -of defendant, plaintiffs must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant -owed the plaintiffs under the circumstances -in which they were plateed; 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 ih©tve 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; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849; Wall v. Trogdon, 249 N.C. 747, and cases cited.
Thea-e must be legal evidence of every material fact -necessary to support -a 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 giuess, or on possibilities.” 23 C.J. 51. Wall v. Trogdon, 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. Mills v. Moore, supra.
Moreover, in Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670, in opinion by Ervin, J., it is appropriately stated: “In an -action for death by wrongful -act based on negligence, .the burden rests on the plaintiff to produce evidence, either -direct -or circumstantial, sufficient to establish the two essential elements of -actionable negligence, (deleting citations), namely: (1) That the defendant was guilty of -a negligent aot or omission; and (2) .that such act or omission prox-i-rnately caused the dlealih of the decedent * * * To carry this burden by circumstantial evidence, the .plaintiff must present facts which reasonably warrant the inference that the decedent was killed by the *22actionable negligence of the defendant * An inference of negligence cannot rest on conjecture or surmise * This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proofs * * *
Indeed, an accepted aard sound rule of law land logic is that 'the facts from which an inference of negligence may be drawn must be proved, and cannot themselves be inferred or presumed from other facts which merely raise a conjecture or possibility of their existence. See 20 Am. Jur. Evidence, Sec. 165,— recognized with approval in ithe Sowers case.
And in Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258, opinion by Parker, J., this principle is applied in this manner: “When in a case like this the plaintiff must rely on the physical facts, and other evidence, which is circumstantial in nature,'to show that Donald Wilson wias driving the automobile at ¡tire time of the wreck, he must establish attendant facts and circumstances which reasonably warrant this inference (citing oases). Such inference cannot rest on conjecture or surmise * * ‘The inferences contemplated by this 'rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff’ * * * ‘A cause of action must be something more than a guess’ * * * A resort to a choice of possibilities is guesswork, not decision * * * To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.”
Testing plaintiffs’ evidence by these principles in determining its sufficiency to show negligence of testate of defendant in the operation of the 'automobile, the question is left in the realm of conjecture and surmise. Just what happened to bring about the “great impact,” as characterized by Mrs. Dorney, is pure guesswork. And the rule of res ipsa loquitur upon which plaintiffs rely is inapplicable.
Under decisions of this Court in actions biased on actionable negligence, and there is no definite evidence as to what caused the accident and no evidence of negligence except the bare fact that the accident occurred, and plaintiff therefore seeks to maintain her action by 'applying tire rule res ipsa loquitur, the rule is as abated in Scott v. London Docks Co., 159 Eng. Rep. 665, that “There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or Iris servants, and the accident is such as in tire ordinary course of things does not happen if those who have the management use proper care, or affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose *23from want of care.” See among others Saunders v. R.R., 185 N.C. 289, 117 S.E. 4; Lea v. Light Co., 246 N.C. 287, 98 S.E. 2d 9.
But decision's of this Count uniformly hold that the principle of res ipsa loquitur “doeis not (apply (1) when all 'the facts causing the accident are known and testified to by the witnesses at the trial * * * ; (2) where more than one 'inference can be drawn from the evidence as to the cause of the injury * * * ; (3) Where the existence of negligent default is not the more reasonable probability, and where the proof of the 'Occurrence, without more, leaves the matter resting only in conjecture * * *; (4) where if appears that the 'accident was due to a cause beyond/ -the control of the defendant, such .as the (act of God or the wrongful or tortious act of ia stranger * * *; (5) when the instrumentality causing /the injury ‘is not under the exclusive control or management of defendant * * *; (6) where the injury results from accident as defined and contemplated by law.” Springs v. Doll, 197 N.C. 240, 148 S.E. 251.
Nevertheless plaintiffs, appellants, relying principally upon Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477, contend .that the doctrine of res ips'a loquitur is recognized in North Carolina >as lap-plicaible to unexplained -automobile accidents.
In this connection it must be noted, however, that “Every opinion, to be correctly understood, ought to he considered with ia view to the -case in which it was delivered,”— so declared Chief Justice Marshall, writing in 1807 in U. S. v. Burr, 4 Cranch, 469, at 481. And this rule Iras been expressed in many opinions before this Court. See oases listed in Strong’s N. C. Index, Vol. 1, Appeal iaod Error, Sec. 59, including Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 (1956), where in opinion by Bobbitt, after .speaking of statements in our decision's “which, when considered apart from the factual situations under -consideration, tend to support plaintiff’s contention,” '.added “But we are mindful of the apt expression of Barnhill, J. (later C.J.): ‘The law discussed (in -any opinion is set within the framework of the facts of that particular case * * * .’ ” Light Co. v. Moss, 220 N.C. 200, 17 S.E. 2d 10.
With this rule in mind, it is seen that the factual situation in the Etheñdge case, as stated in the opinion of the Court, is this: “On Sunday 27 April, 1941, plaintiff and defendant, brothers, were returning to Whitakers, N. C., from Bellamy’s Mill in an -automobile owned and 'operated by defendant. Defendant was -driving about 35 miles per hour on a 'dirt road. As they 'approached an intersection or fork -in the road defendant .passed another vehicle going about 20 miles per hour. 'He -swerved around that -car and mtn into that intersection *24and lost control of the oar rand ran in the ditch (on the right) 'and the oar turned over. He crossed the intersection 'and was making the bend to the left and the speed he eouldnit make it .and hit the bank on the right side. After you crossed the intersection the road curves to the left.’ The oar ran into the ditc'h and turned over. Defendant passed the car before reaching the intersection and the oar turned over 100 to 150 feet beyond the intersection. It was dusty at the time. Defendant offered evidence tending to show that as he crossed the intersection his oar hit a ‘kinder’ -bump, went to the right and stayed on the right-hand side until tire accident occurred. He tried to turn back to the middle of tire read but could not. He does not know why. He applied his brakes ‘but they did not seem to take hold.’ ”
And it will be noted in the opinion, after first discussing the related facts, it is said: “This evidence, except as one ¡of several circumstances, does not tend to Show negligence. Is there, then, any sufficient evidence of want of due care, requiring .the submission of the cause to a jury? The statute prohibits the operation of a motor vehicle without due caution and circumspection or at a speed or in a maimer so as to endanger or be likely to endanger any person or property, Sec. 102, Chap. 407, Public Laws 1937, or .at a speed greater than is reasonable and prudent under the conditions .tiren existing * * * Plaintiff’s complaint, liberally construed, ¡alleges a violation of these provisions of our Motor Vehicle Laws. We are constrained to hold that he -has offered evidence tending to support ¡the .allegation.”
The reason for the decision is merely that this evidence of the violation of the statute prohibiting reckless driving was sufficient to require submission of the .case to a jury. (The opinion might have stopped here.) Appellee contends, and rightly so, that this limitation of the effect of the Etheridge case is recognized in Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197, and Stegall v. Sledge, 247 N.C. 718, 102 S.E. 2d 115, in which cases the Etheridge ca'se is cited for ¡the proposition ¡that the evidence tended to show excessive speed or reckless driving.
Moreover, appellees contend, and we hold properly so, that much of what was said in Etheridge case was obiter dicta, ¡and that what the case actually holds is: “When a motorist drives an ¡automobile around a -curve at ¡such a speed ¡that he cannot malee the curve and runs into a ditch bank, causing his car to overturn, all of which the evidence offered tends to .show, a jury may find that he is guilty of actionable negligence in the violation of G.S. 20-140”; and that “the case also stands for the proposition that under these circumstances the jury may decline to believe defendant’s explanation that lie lost control be*25cause of striking a bump in tibe road ¡or was uiaabfe to retain control because of sudden failure of bis brakes.” Thus when .the Etheridge case is closely scrutinized it is found that it does not hold that the doctrine of res ipsa loquitur has been adopted in this State in automobile .accident oases. Manifestly it does not support the proposition that a ease is made for the jury by merely showing that an automobile apparently suddenly and for some unexplained reason leaves the highway and 'Overturns in a creek bed,— there being no evidence of excessive speed, reckless driving, or failure to exercise reasonable control and lookout.
Indeed the opinion in the EtheHdge case quoting from Springs v. Doll, supra, states that it, the doctrine of res ipsa loquitur, does not apply * * * (2) where more than one inference can be drawn from the evidence -as to the .cause of the injury; (3) where the existence of negligent default is not the most reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture * * * (6) where ¡the injury results from accident as defined and contemplated by 'law. In this aspect .compare Lea v. Light Co., supra.
It may be also noted and appellee Calls attention to the fact that in the North Carolina cases cited by appellant there is testimony in the -record comprising evidence of facts and .circumstances, other than tire mere occurrence of the accident from which ajn inference of negligence might be drawn. And it would seem that this is true of oases cited from other jurisdictions.
Further it is noted that in the case in hand the evidence discloses nothing except that there was an unexplained .and mysterious upset of ■the car being driven by testator of defendant. He died in the accident. Thus the record leaves the case wholly in the area of speculation and conj ecture.
Hence, for reasons stated, the judgment as of nonsuit is