¶1dissenting:
¶2I concur in what the court states to be the rule as to how the evidence is to be considered on a motion to strike out the plaintiff’s evidence, made at the conclusion of the plaintiff’s evidence in chief. See Green v. Smith, 153 Va. 675, 151 S. E. 282, and Jones v. Hanbury, 158 Va. 842, 164 S. E. 545, 546. But I am of opinion that when the evidence in this case is viewed as upon a demurrer to the evidence, it leaves it purely conjectural as to whether there was any act of negligence on the part of the defendant which had any causal connection with the death of Joseph E. Catron; while, on the other hand, there is much evidence which tends strongly to show that the decedent was guilty of negligence which at least contributed to causing his death. Perhaps there was some evidence which tends to show that it was possible that the defendant may have been guilty of negligence which caused or contributed to the causing of Catron’s death, but such evidence is, I think, insufficient to take the question of whether the defendant was guilty of negligence which caused or contributed to causing the death of Catron out of the realm of conjecture and speculation, and warrant an inference that the defendant was guilty of such negligence.
¶3The fact that the evidence is to be considered as on a demurrer to the evidence does not entitle a plaintiff to recover on a mere conjecture, guess, or speculation. The burden still rests upon the plaintiff to establish affirmatively both that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury complained of. If, when the evidence is so considered, the facts which may be properly considered as established thereby are as consistent with the lack of causative negligence on the part of the defendant as with the presence *67of such negligence, or are only sufficient to show that it was merely possible that there may have been such negligence on the part of the defendant, it is insufficient to support a verdict.
¶4It is pertinent to keep in mind that all the evidence which was introduced was introduced by the plaintiff, and there is certain evidence in the rceord, in addition to that which is mentioned in the opinion of the court, which I think should be considered. That my view of this case may be better understood, I shall call attention to a part of this, and also quote at length all the evidence of the negro, A. T. Hairston, which bears on the question of the liability of the defendant.
¶5In the snow along the north side of the road were the tracks of a man walking east. The tracks left the north edge of the part of the roadway that had been cleared of snow, then ran practically straight eastwardly along the side of the road in the snow for a distance which the several witnesses estimate to be from fifteen to thirty feet, and then turned back to the part of the roadway which had been cleared of snow. Almost opposite to where these tracks come back into the road were found some “chunks” of mud which had been knocked off a car and the most easterly blood spot; and a little farther west (from six to fifteen feet according to the estimates of the several witnesses) Catron’s hat was found over against the fence which runs along the north side of the road. The mud and the. blood spot were in the road on that portion of it which is hard surfaced, and to the right of the center of it. There was a “string” of blood spots from this most easterly spot to where Catron’s body was lying when it was first seen by any of the witnesses. This “string” of blood spots ran along the hard-surfaced part of the road about two feet from the north side thereof. These facts are testified to by several of plaintiff’s witnesses, and are denied by no one.
¶6Douglas Humphreys, who was the first person to arrive at the scene after the accident, testifies on cross-examina*68tion that Mrs. Birchfield flagged him as he came driving by, and when he stopped and came back to where she was, she said to him that she had killed a man; that he had stepped out in the road right in front of her car; and that she tried her best to avoid it, but could not help it.
¶7The only other testimony which tends to show where Catron was at the time of and just prior to the accident is that of the negro Hairston. The material parts of this negro’s testimony is as follows:
¶8“A. … When the car ran around in front of our car I spied a man.
¶9“Q. How far down the road in front of you was the man you saw?
¶10“A. Something in the neighborhood of thirty or forty yards off.
¶11“Q. Which side of the road was the man on?
¶12“A. He was on the north side of the road ….
¶13“Q. Did you get a clear view of the man?
¶14“A. Yes, sir, it was just a glance.
¶15“Q. Which way was he facing?
¶16“A. He was facing this way.
¶17“Q. What did the car that ran around you do?
¶18“A. When the car ran around the car I was in he kept around like that (indicating) and then swung to his left.
¶19^
¶20“Q. What did the car you were in do when this car slowed down and stopped?
¶21“A. When this car cut around us and made that left hand cut the car I was in cut back on the ball of the road like and when this car slowed down and stopped, this car I was in just kept beating it.
¶22^ ^ j¡! $ ;{$ ^
¶23“Q. Did you see this man knocked down in the road?
¶24“A. No, sir.
¶25“Q. What did this man do that you saw in the road?
¶26“A. When this car ran around in front of us I spied the walking man facing the light and when this car cut *69and got straight in front of us I did not see the man any more, and the car I was in pulled over on the ball of the road like and there he stayed.
¶27“Q. Whereabouts in the road was this man that you saw?
¶28“A. He was out on the berm of the road like that.
¶29“Q. You mean by the berm of the road, he was out off the hard surface on the shoulder of the road, wasn’t he ?
¶30“A. No, sir, the berm of the road runs down like this (indicating).
¶31“Q. What is the berm of the road?
¶32“A. It runs down slanting like that (indicating), and from there is dirt and from here on down is concrete.
¶33$ … *
¶34“Q. I want to know what a berm is, what is a berm?
¶35“A. What we always call the berm is outside of the rock.
¶36“Q. That is what I thought, outside of the rock, out on the dirt.
¶37“A. He wasn’t out on the dirt, but he was down here on the edge of the rock.
¶38“Q. Is the berm the edge of the rock or dirt?
¶39“A. The edge of the rock is what we always call the berm.
¶40“Q. How much of the rock is the berm; you mean the line the rock makes when it meets the dirt, is that what you call the berm?
¶41“A. Yes, sir.
¶42“Q. Was this man on the rock or on the dirt?
¶43“A. He seemed to be on the rock.
¶44“Q. There on the rock and he was looking towards the two cars that were coming along?
¶45“A. Yes, sir, facing them.
¶46“Q. What was he doing?
¶47“A. When I saw him by the light he looked like he was in the act of coming this way.
¶48*70“Q. Walking down the road facing the lights?
¶49“A. He seemed to be.
¶50“Q. How far was he in front of the car that passed you?
¶51“A. He seemed to be about something like thirty yards.
¶52“Q. How far was your car from him when you first saw this man?
¶53“A. It was about forty yards away I reckon, or something like that, it may have been down to thirty when I saw the man by the light of the car that run around me.
¶54“Q. Was the man walking along ordinarily, apparently?
¶55“A. To be sure, he looked to be that way. *********
¶56“Q. You saw him by the lights of the other car?
¶57“A. Yes, sir.
¶58“Q. And those lights were shining on him?
¶59“A. Yes, sir, until he got straight in front of him and then I didn’t see the man any more. *********
¶60“Q. Isn’t it a fact that the car in front of you did not get off the hard surface road?
¶61“A. I don’t know, but I don’t think it did, I don’t know about that.
¶62“Q. Apparently it did not, the best you could see, it did not?
¶63“A. Yes, sir.
¶64“Q. So the car did not get off the hard surface of the road?
¶65“A. No, sir, because when he cut in front and made that left hand cut again I suppose it was to straighten out the car, then cut out to his left.
¶66“Q. When he straightened out he certainly had not gotten off the road on the right hand side, had he ?
¶67“A. No, sir, not apparently.
¶68“Q. This man who was walking on the right hand edge of the road could have stepped off and the car would have passed on by him, couldn’t he?
¶69*71“A. Yes, sir, he could have did that.”
¶70Hairston only saw Catron “just at a glance,” and if his evidence be true, from the time he caught this glance of Catron not more than three seconds elapsed before the Birchfield car struck him. At that time Catron was from ninety to 120 feet in front of Birchfield’s car, which must have been going at thirty miles an hour (forty-five feet per second) or more, and Catron, walking as Hairston describes him, could not have gone more than from twelve to fifteen feet before he was struck.
¶71The evidence must be considered in the light of these facts and the fact that not only the tracks in the snow, but also the testimony of Hairston places Catron off of the hard-surfaced part of the road, certainly until he was at or within a few steps of where he was struck. I find no evidence which I think warrants more than a guess that Catron was struck when off the hard-surfaced part of the road, or that Birchfield’s automobile ever ran off the hard-surfaced roadway on the berm of the road. On the contrary, I think there is ample evidence to warrant the inference that Catron stepped from the berm of the road on the hard-surfaced part of the road immediately in front of the Birchfield car, and was there struck.
¶72It is my conclusion that the judgment of the trial court is correct.