The learned judge below reserved the question whether there was any evidence to be submitted to the jury upon which the plaintiff can recover, and subsequently entered judgment for the defendants non obstante veredicto. In entering this judgment we think he reached the substantial justice of the case. He appears to have been led to this result, however, because, to use his own language, “ the evidence in the case at bar was overwhelming that it (the road in question) had not been closed up for several years afterward and a finding against this fact could not have been sustained.” It does not follow that because the evidence on one side may be overwhelming in the opinion of the trial judge, that the case can be withdrawn from the jur}r. If there is a conflict of evidence it must go to the jury unless the evidence on one side amounts but to a scintilla. The evidence of James Holland amounts at most to but a scintilla, and the learned judge was right in saying' that a finding against the fact in question could not have been sustained. Where the evidence is so weak that it would be the duty of the court to set aside the verdict of the jury, there is no propriety in submitting it. We think the judgment was properly entered for the defendants.
Judgment affirmed.