#### WILLIAM M. GEORGE, Administrator of W. EDWARD GEORGE, v. WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY.

(Filed 8 June, 1940.)

1. Appeal and Error § 49a—

Where *the*evidence *upon the*subsequent trial is materially different from that on the former trial, the decision of the Supreme Court on the former appeal is not conclusive.

2. Evidence § 45a: Railroads § 10—

Testimony of an expert witness as to the position of deceased’s body when struct by defendant’s train is properly stricken out when the witness testifies that his opinion is not based upon the wounds on the body but upon the fact that intestate was wearing white shoes and white marks were found on the inside of one of the rails and the “opinion of the entire crowd.”

3. Railroads § 10—

In an action to recover for the death of intestate killed on defendant’s railroad tracks by a train, the doctrine of last clear chance applies only if intestate was down on the tracks in an apparently helpless condition; and when the evidence does not tend to positively establish this essential fact, but leaves the matter in speculation and conjecture, it is insufficient to support the submission of the issue.

*685Appeal by defendant from *Rousseau, J.,*at February Term, 1940, of Davidsokt.

Reversed.

*Willis & Seawell and G. David Swift for plaintiff, appellee.*

*Oraige & Graige and Phillips ■& Boiuer for defendant, appellant.*

Schenck, J.

Tbis is an action for the wrongful death of the plaintiff’s intestate alleged to have been caused by the negligent failure of the defendant to avail itself of the last clear chance to avoid running its train over and fatally injuring said intestate while on the track of the defendant.

From an adverse judgment predicated upon the verdict, the defendant appealed, assigning as error the failure of the court to sustain its motion for a judgment as in case of nonsuit made when the plaintiff had introduced his evidence and rested his case and renewed after all the evidence on both sides was in. C. S., 567.

This case was before us at the Spring Term, 1939, upon the plaintiff’s appeal from a judgment as in case of nonsuit, which judgment was reversed (215 N. C., 773). The former judgment was predicated upon the holding that there was no competent evidence that the intestate was down on the track in an apparently helpless condition at the time he was run over and killed by the defendant’s train. This Court, however, was of the opinion that the expert testimony of the witness Doctor Terry to the effect that in his opinion, judging from the nature, the condition and position of the wounds on his body, the deceased was lying down upon the track at the time same were inflicted, was competent, *McManus v. R. R.,*174 N. C., 735, and sufficient evidence to be submitted to the jury upon the issue of last clear chance, and reversed the holding of the trial court.

In the second trial of the ease, which is now before us for review, the testimony of Doctor Terry was substantially different from what it was in the former trial. While he repeated his opinion to be that the intestate was lying down upon the track at the time he was struck and killed by the train, he stated that this opinion was based upon the fact that the intestate had on white shoes and white marks were found on the inside of one of the rails of the track, “and it was the opinion of the entire crowd that he was lying on the flat side of this sawed crosstie, but not from the wounds on the body — not of the opinion from the wounds on the body, but from the signs on the rail.”

Notwithstanding the court in its discretion allowed the plaintiff who had offered Doctor Terry as a witness to cross-examine him, he steadfastly reiterated that his opinion that the intestate was prone upon the track was based upon the white marks on the rail and “the opinion of *686tbe entire crowd,” and not upon tbe nature, condition and position of tbe wounds upon tbe body. Tbe court struck out tbe witness’ testimony as to bis opinion that tbe intestate was lying upon tbe track when struck and killed. Tbis we tbink was proper, and no exception thereto appears in tbe record.

Tbe evidence in tbe first trial and in tbe second trial was practically tbe same, except tbe material difference in tbe essential testimony of Doctor Terry. Where upon tbe new trial granted on appeal by tbe Supreme Court tbe evidence is materially different from that on tbe former trial, tbe former adjudication is not conclusive and another appeal will lie. *McCall v. Institute,*189 N. C., 775.

With Doctor Terry’s expert opinion as to tbe intestate’s being prone upon tbe track eliminated, there is no evidence of tbe first fact essential to be proven in cases of tbis nature, as stated in *Henderson v. R. R.,*159 N. C., 581, namely, “that tbe deceased was down on tbe track in an apparently helpless condition.”

With Doctor Terry’s expert opinion out of tbe record, what is said by *Winborne, J.,*in *Cummings v. R. R., ante,*127, becomes pertinent: “. . . it may be inferred from tbe evidence as to tbe physical condition of tbe body and accompanying signs at tbe scene that tbe intestate was struck and killed by'a train. Yet these physical' facts present no reasonable theory to tbe exclusion of many others as to tbe circumstances under which tbe accident occurred. In what position was intestate when struck? Tbe evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in mere conjecture. Tbe probabilities arising from a fair consideration of such evidence affords no reasonable certainty on which to ground a verdict upon an issue of last clear chance.”

Tbe judgment of tbe Superior Court is

Reversed.