#### PATRICK AYSCUE v. A. T. BARNES.

(Filed 7 October, 1925.)

Appeal by defendant from Devin, J., at June Term, 1925, of VaNCe.

Civil action to recover damages for an alleged negligent injury caused by defendant’s ambulance striking plaintiff, a pedestrian on a public highway, and resulting in serious damage.

Upon denial of liability, and issues joined, tbe jury returned tbe following verdict:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant or bis agent? Answer: Yes.

“2. Did tbe plaintiff by bis' own negligence cause or contribute to bis injury? Answer: No.

“3. What damages, if any, is tbe plaintiff entitled to recover ? Answer: $2,000.”

From a judgment on tbe verdict in favor of plaintiff, tbe defendant appeals, assigning errors.

Perry & Kittrell, T. T. Kicks & Son and A. A. Bunn for plaintiff.

Thomas M. Pittman and Kittrell & Kittfell for defendant.

Pee CueiaM.

Tbe appeal presents no new question of law, or one not heretofore settled by our decisions. Tbe evidence was conflicting on tbe issues of negligence and contributory negligence, resulting in a controversy which tbe jury alone could determine. They have resolved tbe disputed questions of fact against tbe defendant and in favor of tbe plaintiff. There is no reversible error appearing on tbe record. Tbe exception relating to tbe judge’s refusal to accept tbe verdict, as first *860tendered by tbe jury, cannot be sustained. Willoughby v. Threadgill, 72 N. C., 438. Tbe modification of defendant’s special instructions was not only without prejudice, but- entirely proper under tbe evidence in tbe case. Tbe verdict and judgment must be upheld.

No error.