The only question for us to decide in this case is,' whether the court erred in directing the jury to find for the defendant. Under our statute we have no such *587thing as an involuntary nonsuit upon the evidence (Rev., § 3127). All actions are to be tried upon the merits (§ 3128). If there 's no evidence tending to establish the plaintiff’s case; or, if there are two or more essential ultimate facts required to be shown in order to entitle him to recover, as in a case depending upon some title or a right, and notice of that title or right to the other party, and in such case there is no evidence tending to establish one of said facts, it is the duty as well as within the province of the court to directly instruct the jury, as was done in this case, how to. find. But where there is evidence tending m amy degree to establish the cause of action, however slight it may be, the questions of fact involved in it should primarily be left to the jury to find. Muldowny v. The Illinois Central Railway Co., 32 Iowa, 178, and cases there cited. Hence, under the statute and our previous rulings, it follows, that it is the duty of a nisi prims court in this State to submit the case to the jury upon the evidence, when it only tends even to prove it, although the court should feel in duty bound to set aside a verdict for the plaintiff, if the jury should so find. In other States a different, and perhaps better and more consistent rule obtains, whereby the court may direct the jury how to find, when it would set aside a verdict otherwise. Brown v. Railroad Co., 58 Me. 389; Wilds v. H. R. R. Co., 24 N. Y. 424.
Without here repeating the rules of law respecting the necessity upon the plaintiff in such cases of showing both negligence on the part of a defendant and the absence of it on the part of the person injured; and without determining whether it would have been the duty of the court to set aside a verdict for the plaintiff, if the jury had so found, in this case, we hold, under the rule as above stated, that it was error to instruct as was done by the court below.
Reversed.