after stating the ease. At the close of the plaintiff’s evidence, the defendant moved for a judgment as of nonsuit. This was properly refused. Permitting its *530track and right of way to become covered with dead grass and combustible material was at least evidence of negligence. The defendant, after introducing evidence, offered various prayers for instruction, among which were the following:
“9. Upon the whole evidence, the plaintiff can not recover.
“10. Upon the whole evidence, the defendant is not guilty of negligence, and the plaintiff can not recover.”
In view of the substantial evidence tending to prove negligence, these prayers were manifestly improper, and would have been so in any event. Where there is no evidence tending to prove negligence, or nothing more than a mere scintilla, the Court may so instruct the jury; but in all such cases, the evidence must be construed most strongly against the party asking for the direction of the verdict, as it is practically a demurrer to the evidence. All contradictions must be solved in favor of the opposite party, taking his evidence as true, and construing all the evidence in the light most favorable to him. Cowles v. McNeill, 125 N. C., 385; Coley v. Railroad, 129 N. C., 407, cases there cited. The form of the prayer is itself objectionable, as it assumes that equal weight is to be given to all the evidence. The prayer should be substantially to the effect that there is no evidence tending to prove the negligence of the defendant or the plaintiff, as the case may be. A mere scintilla is not considered evidence.
Two of the defendant’s prayers were given, as follows:
“1. If the jury shall find from the evidence that the plaintiff piled or raked up the wood on defendant’s right of way, very near the track, without obtaining consent of defendant, then and in that event the plaintiff assumed all risk of fire from defendant’s engine, and plaintiff can not. recover.”
“8. The plaintiff must go further and show more than that the right of way was not clear of stubble, etc., but must also show to the satisfaction of the jury that the fire originated from defendant’s engine before plaintiff can- be allowed to recover.”
*531The Court further charged the jury as follows, to' which defendant excepted:
“1. If the jury find that the wood was) placed on the right of way by consent of defendant, for shipment, and that along that section of the road the track and right of way were foul and littered with inflammable material, and that sparks were communicated from defendant’s engine to this inflammable material, and that such fire spread and extended to plaintiff’s wood and destroyed it, you will answer the first issue ‘Yes.’
“2. If you find that defendant had a rule and regulation prohibiting the placing of wood, delivered on right of way, within six feet of said road-bed, and that plaintiff did place his wood within six feet of said road-bed, that would be negligence on the part of plaintiff, and if you- further find that the sparks from the engine were communicated directly from the engine to this wood, by reason of its dangerous proximity, it would be contributory negligence, and you will answer the second issue ‘Yes.’ ”
We see no error in these instructions of which the defendant can complain, and in fact it might well be questioned whether the second one is not too favorable to the defendant, inasmuch as it holds the plaintiff to the observance of a rule which does not appear to have been brought to his knowledge. We think that these instructions, with the prayers given, fairly and sufficiently present the defendant’s case. The remaining prayers were properly refused.
There are many exceptions to the evidence, none of which can be sustained. It was proper and necessary for the plaintiff to show that the wood was placed on defendant’s right of way with its permission, for the purpose of shipment, and that it was not close enough to the track to' interfere in any way with the passage of a train. .In the absence of error, the judgment must be
Affirmed.