Did the trial court commit error (1) in overruling defendant’s objection to the submission of the third issue, that is, as to last clear chance; (2) in overruling defendant’s motions, aptly made, for judgment as of nonsuit; and (3) in declaring and explaining the law arising on the evidence with respect to the first and third issues ? These are the questions involved as stated by defendant in its brief filed on this appeal.
Considering the second question first: The evidence shown in the record on appeal, taken in the light most favorable to plaintiff, as is done in testing its sufficiency on motions for judgment as of nonsuit, appears to be sufficient to take the case to the jury on the first issue.
Moreover, in the light of the extenuating circumstances under which the agent of plaintiff drove plaintiff’s automobile on the track in the face of an oncoming railroad train, as revealed by the evidence shown in the record, the question as to contributory negligence of plaintiff was properly submitted to the jury. Cooper v. R. R., 140 N.C. 209, 52 S.E. 932; Shepard v. R. R., 166 N.C. 539, 82 S.E. 872; Oldham v. R. R., 210 N.C. 642, 188 S.E. 106.
However, as to the first question: We are of opinion and hold that the doctrine of last clear chance is inapplicable upon the facts of record, and that the issue in that respect should not have been submitted to the jury.
It is stated by this Court in Redmon v. R. R., 195 N.C. 764, 143 S.E. 829, Brogden, J., writing, that the doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence; that no issue with respect thereto must be submitted to the jury unless there is evidence to support it; and that the burden of such issue, when submitted, is upon the plaintiff.
Moreover, in Miller v. R. R., 205 N.C. 17, 169 S.E. 811, opinion also by Brogden, J., this Court declared that “peril and the discovery of such peril in time to avoid injury constitute the backlog of the doctrine of last clear chance.”
And in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337, in opinion by Barnhill, J., it is said: “The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff if the defendant, being aware of plaintiff’s peril, or in the exercise of due care should have been aware of it in time to avoid injury, had in fact a later opportunity than the plaintiff to avoid the accident . . . Its application is invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff’s negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff’s prior negligence ... It is what defendant negligently did or failed to do, after plaintiff put himself in peril that constitutes the breach of duty for which defendant is *670held liable. To sustain tbe plea it must be made to appear tbat (1) plaintiff by bis own negligence placed bimself in a dangerous situation, (2) tbe defendant saw, or by tbe exercise of reasonable care should bare discovered, tbe perilous position of plaintiff, (3) in time to avoid injuring bim, and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at bis command to avoid impending injury, (5) as a result of which plaintiff was in fact injured,” citing cases. To like effect is Aydlett v. Keim, 232 N.C. 367, 61 S.E. 2d 109, opinion by Denny, J.
Tbe discovery of tbe danger, or duty to discover it, as basis for a charge of negligence on tbe part of defendant after tbe peril arose, involves something more than a mere discovery of, or duty to discover, tbe presence of tbe injured person, it includes a duty, in tbe exercise of ordinary care under tbe circumstances, to appreciate tbe danger in time to take tbe steps necessary to avert tbe accident. It has been said by tbe Supreme Court of tbe State of Washington, in Hartley v. Lasater, 96 Wash. 407, 166 P. 106, tbat “last clear chance implies thought, appreciation, mental direction, and tbe lapse of sufficient time to effectually act upon tbe impulse to save another from injury, or proof of circumstances which will put tbe one charged to implied notice of tbe situation ... A mere statement of tbe rule reveals its inapplicability to a case where tbe contributory negligence began and culminated without tbe lapse of appreciable time.” See also Shanley v. Hadfield (Wash.), 213 P. 932; Annotation 92 A.L.R. 47.
There must be legal evidence of every material fact necessary to support tbe verdict, and such verdict “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of tbe evidence, and not a mere guess, or on possibilities.” 23 C.J. 51. Mercer v. Powell, 218 N.C. 642, 12 S.E. 2d 227, and other cases, including Poovey v. Sugar Co., 191 N.C. 722, 133 S.E. 12.
In tbe Poovey case, supra, it is said: “ ‘The rule is well settled tbat if there be no evidence, or if the evidence be so slight as not reasonably to warrant tbe inference of tbe fact in issue or furnish more than material for a mere conjecture, tbe court will not leave tbe issue to be passed on by tbe jury’ (citing cases). This rule is both just and sound. Any other interpretation of tbe law will unloose a jury to wander aimlessly in tbe field of speculation.”
Tested by these principles, there is no substantial evidence tbat, after S. B. Taylor drove plaintiff’s automobile into a place of danger, there was anything defendant could have done to avert tbe collision between tbe automobile and defendant’s engine.
Indeed, the colloquy between tbe court and tbe conductor, as to tbe distance within which an engine and train of cars traveling at speed of *671six miles per bour could be stopped, lacks probative value. In the first place, it does not stand tbe test of mathematical calculation, even “for just a second or two.” In the second place, evidence rere ais estimates of tfie speed of the engine varying from four to eight miles per hour.
"Where issue of last clear chance is erroneously submitted, and the jury answers both issues, negligence and contributory negligence in affirmative, and issue as to last clear chance in affirmative, defendant is entitled to judgment. Reep v. R. R., 210 N.C. 285, 186 S.E. 318. So it is in the present case, — the defendant is entitled to judgment.
So holding,- — -it becomes unnecessary to consider the third question.
Hence the judgment below is
Reversed.