Young v. Wilmington & Weldon Railroad , 116 N.C. 932 ( 1895 )

Eaieoloth, C. J.:

At the close of plaintiff’s evidence His Honor ivas of opinion that he was not entitled to recover and a non-suit was taken and an appeal granted. At the time of the fire the defendant was not liable as a common carrier but was only liable for want of ordinary care as a warehouseman. Hilliard v. Railroad, 6 Jones, 343. The plaintiff was required to prove the negligence as a part of his case. Kahn v. Railroad, 115 N. C., 638. We think His Honor properly held that the evidence was insufficient to justify the jury in rendering a verdict for plaintiff. Judges' are no longer required to submit a case to the jury merely because some evidence lias been introduced by the the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. There is, or may be, in every case, a preliminary question for the Judge, not whether there is absolutely no evidence, but whether there is more than a scintilla of evidence upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof is imposed. Commissioners v. Clark, 94 U. S. (4 Otto) 278 (61); Ryder v. Womble, L. R. Exc., 39. Wittoswky v. Wasson, 71 N. C., 451. Affirmed.