#### LUTHER HONEYCUTT v. JIM BROWN, Trading and Doing Business Under the Firm Name of Elk Mountain Sand and Gravel Company, and JIM BROWN, Individually.

(Filed 19 May, 1926.)

Appeal by defendant, Jim Brown, from Dunn, J., and a jury, at October Special Term, 1925, of Buncombe. No error.

This is an action for actionable negligence, brought by plaintiff, Luther Honeycutt, against defendant, Jim Brown.

. The issues submitted to the jury and their answers thereto were as follows:

“1. Was the plaintiff injured hy the negligence of the defendant, as alleged in the complaint? Answer: Yes.

*830“2. Did tbe plaintiff contribute to bis own injury, as alleged in tbe answer? Answer: No.

“3. Did tbe plaintiff assume tbe risk of bis injury, as alleged in tbe answer? • Answer: No.

“4. What damages, if any, is tbe plaintiff entitled to recover? Answer: $400.”

Defendant excepted to tbe judgment, assigned several errors and appealed to tbe Supreme Court.

George M. Pritchard for plaintiff.

■ George W. Garland for defendant.

Per Curiam.

We bave beard tbe arguments of counsel, read tbe evidence carefully, considered tbe assignments of error and examined tbe briefs. We tbink tbe charge unusually full and explicit, and tbe law carefully applied to tbe facts. Tbe briefs of tbe parties cite no authorities. Tbe only material assignment of error on part of defendant was tbe motion for judgment as in case of nonsuit. C. S., 567. We tbink, under all tbe facts and circumstances of tbe case, there was sufficient evidence'to be submitted to tbe jury. The probative force was for them: There was no new or novel proposition of law in tbe case. In law we can find

No error.