The theory upon which the right to recover is predicated, is that the plaintiff’s intestate was down on the track in a helpless condition, and consequently should have been seen by those in charge of the train which was backed into the T. for the night. The plaintiff’s intestate was never seen within 200 yards of the place where his body was found. The bare fact that the train was backing without a light and that the decapitated body of Charles Henry was found on the track approximately twelve hours afterwards, is not sufficient evidence to be submitted to the jury, and the ruling of the trial judge was correct. Indeed, the case is governed by the principles announced in Austin v. R. R., 197 N. C., 319, 148 S. E., 446.

Affirmed.