#### BERLIN JENKINS v. SUNCREST LUMBER COMPANY et al.

(Filed 31 May, 1924.)

Appeal and Error — Precedent—Divided Court.

The judgment of the lower court will be affirmed without establishing a precedent, when the Supreme Court is equally divided as to the decision on axipeal.

Appeal by defendant from McBlroy, J., at January Term, 1924, of Haywood.

Civil action to recover damages for an alleged negligent injury.

Tbe usual issues of negligence, contributory negligence, assumption of risk and damages were submitted to tbe jury and answered by them in favor of tbe plaintiff. From a judgment on the verdict defendant appeals, assigning errors.

Swain Elias, Grover C. Davis, Zeb F. Curtis, William Tucker Ham nah, and W. J. Hannah for plaintiff.

Morgan & Ward and Alley & Alley for defendant.

Stacy, J.

This case comes from tbe Twentieth Judicial District and was called for argument last week after tbe death of Chief Justice Clark. Two members of tbe Court think that a new trial should be awarded, while tbe other two held a contrary view. Thus the Court is evenly divided in opinion. Following tbe uniform practice of appellate courts in such cases, tbe judgment of tbe lower court is affirmed and stands, not as a precedent, but as tbe decision in this case. Durham v. R. R., 113 N. C., 240, and cases there cited.

No error.