When the evidence shown in the record of case on appeal here involved is taken in the light most favorable to plaintiff, giving to .him the benefit of every reasonable inference to be drawn therefrom, as is done in considering demurrer to the evidence, this Court is of opinion that plaintiff fails to make out a case of actionable negligence for alleged wrongful death of plaintiff’s intestate.
In an action for recovery of damages for wrongful death resulting from actionable negligence, the plaintiff must show: First, 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 plaintiff’s intestate under the circumstances in which they were placed; and, Second, that such negligent breach of duty was a proximate cause of the injury which produced the death,— 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, 125 S.E. 84; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406, and cases cited. Also Murray v. R. R., 218 N.C. 392, 11 S.E. 2d, 326; Mills v. Moore, 219 N.C. 25 12 S.E. *2192d 661, and cases cited. White v. Chappell, 219 N.C. 652, 14 S.E. 2d 843; Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239; Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E. 2d, 412; Morgan v. Coach Co., 225 N. C. 668, 36 S.E. 2d 263; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d, 849, and cases cited. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670; Wall v. Trogdon, 249 N.C. 747, 107 S.E. 2d, 757; Grant v. Royal, 250 N.C. 366, 108 S.E. 2d 627.
There 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 guess, or on possibilities.” 23 C.J. 52. Mitchell v. Melts, supra, and 'cases cited.
If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Mitchell v. Melts, supra.
And the principle prevails in this State that what is negligence is a matter of law, and when the facts are admitted or established, the court may say whether it does or does not exist. “This rule extends and applies not only to the question of negligent breach of duty but also the feature of proximate cause.” Hicks v. Mfg. Co., 138 N.C. 319, 50 S.E. 703; Russell v. R. R., 118 N.C. 1098, 24 S.E. 512; Clinard v. Elec. Co., 192 N.C. 736, 136 S.E. 1; Murray v. R. R., supra.
In the light of these principles applied to the factual situation in hand, however regrettable the death of plaintiff’s intestate may be, the evidence is wholly insufficient to make out a case of actionable negligence against defendants. Negligence is not to be presumed from the mere fact of injury or that the intestate was killed.
The judgment of nonsuit must be