This action was instituted by the plaintiff to recover damages for the alleged wrongful death of his intestate. It was alleged and evidence was offered tending to prove that on 18 November, 1934, the intestate, James W. Hester, was struck, run over, and killed by a passenger train of the defendants within the corporate limits of the city of Durham, and that the defendants were negligent in that the train which struck the intestate was running at a rate of speed in violation of *Page 844
an ordinance of the city of Durham, and that the engineer failed to blow his whistle or give other signal of the approach of the train. However, there is no evidence as to what position the intestate was in just prior to and at the time he was struck, the evidence being that he was last seen, some few minutes before the train passed, in the public road about 800 feet from the place on the railroad track where his mangled body was subsequently found. In the absence of any evidence as to the intestate's position upon the track when struck the motion for judgment as of nonsuit was properly entered. Norwood v. R. R.,
Affirmed.