Tbe case does not make it very clear whether tbe expression, “tbe other evidence was as to tbe amount of damages,” refers only to tbe plaintiff’s evidence or to tbe entire evidence. If tbe former is tbe true meaning, we could not decide tbat there is no evidence of negligence, without knowing what was tbe evidence introduced by tbe defendant, for on a motion to nonsuit, tbe plaintiff has tbe right to have all of tbe evidence considered by us in tbe view most favorable to him. Tbe appellant should have relieved us of any uncertainty in this respect. But tbe evidence, as stated in tbe case on appeal, was properly submitted to tbe jury, and under proper instructions, as we must assume, tbe charge of tbe court not having been made a part of tbe case.

*268 The defendant’s counsel seem to bare understood that it was necessary for the jury to find, upon the evidence, that the burning on tbe right of way was done carefully, and that there was no negligence of the defendant in burning the stubble and other combustible material, which contributed to the injury of which the plaintiff complains.

The instructions asked for as regards the rising of the wind, which carried the live sparks into the dry tops of the trees and to the plaintiff’s land, where his timber was burned, were given as requested by the defendant, and the court, in the general charge, may have instructed the jury even more favorably for the defendant.

"Whether, upon the evidence, the defendant acted with ordinary care and prudence, was a question for the jury, and they could consider all the circumstances, the condition of the right of way, the time of the year, the state of the weather, the fact that defendant’s servants left fire behind them that might spread to plaintiff’s land by force of the wind or otherwise, and any other fact or circumstance bearing upon the question of due care. The evidence of negligence may have been slight, but we cannot say that there was none. It was the province of the jury to weigh it, under proper instructions of the court as to what would constitute negligence. “When the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima, facie case of negligence which cannot be repelled but by proof of care, or some extraordinary accident which makes care useless.” Chaffin v. Lawrence, 50 N. C., 179; Aycock v. R. R., 89 N. C., 321; Haynes v. Gas Co., 114 N. C., 203; and especially Moore v. Parker, 91 N. C., 275.

Whether, in dealing with a dangerous agency, the defendant used ordinary precaution to protect adjacent property, and whether, when the danger became imminent, it resorted to such means as the situation suggested to prevent the injury, were questions for the jury. It seems that Superintendent White stopped the conflagration by “firing against it.” It might well be argued that had this method been employed in the beginning, *269 or sooner than it was, the spread of the fire would have been prevented, and, at least, the loss to the plaintiff would have been diminished.

We do not think Eevisal, sec. 3346, applies to the facts. The defendant did not “set fire to any woods,” within the meaning of that statute. The statute refers to woodland. Averitt v. Murrell, 49 N. C., 322. It was held in Achenbach v. Johnston, 84 N. C., 264, that “a field grown up in broomsedge and wire-grass” was not woods within the intent of the statute, and it was said that the case of Hall v. Cranford, 50 N. C., 3, stretched the doctrine of liberal construction, in order to reach the mischief intended to be remedied, as far as it is safe to follow; and we concur in that view. Nor does the statute apply unless the firing is voluntary or intentional, and not merely accidental or necessary. Averitt v. Murrell, 49 N. C., 322; Tyson v. Roseberry, 8 N. C., 60; Lamb v. Sloan, 94 N. C., 534.

Defendant moved in this Court for a new trial, alleging that the jurors were asked if any of them were related to the plaintiff, to which they answered “No,” and that since the trial it has been ascertained that one of the jurors was so related. We will not decide the question as to whether the motion should be made in this Court or in the court below, for assuming that we have jurisdiction, it is addressed to the discretion of the court, as we have so often held, and we would not be disposed, under the facts and circumstances of this case, to exercise our discretion in favor of the defendant and grant a new trial for the reason assigned. S. v. Maultsby, 130 N. C., 664; S. v. Lipscomb, 134 N. C., 689, and' cases cited.

No error.