#### MRS. A. B. BUTLER v. R. B. GANTT et al.

(Filed 7 January, 1942.)

Trial § 43 — Where verdict is not inconsistent and is sufficient to support judgment, the trial coui't may not require jury to revise its verdict.

In this action for negligent injury the jury answered the issues of negligence and contributory negligence in the affirmative and awarded damages. There was no suggestion from the jury of any misunderstanding on its part, but the court gave additional instructions and ordered the jury to retire and revise its verdict as it saw fit. The jury revised its verdict by answering the issue of contributory negligence in the negative. Meld: There was nothing essentially inconsistent with the verdict as originally rendered (the finding of contributory negligence eliminating the award of damages as a matter of law), and the court was without power to require the jury to revise it, and a new trial is awarded upon authority of Allen v. Yarborough, 201 N. C., 568.

Appeal by defendants from Pless, J., at June Term, 1941, of Guil-ford.

Civil action to recover for personal injuries alleged to have been caused by tbe negligence of tbe defendants.

On 15 July, 1940, tbe plaintiff descended tbe stairway of tbe Arcade Building in tbe city of High Point, wbicb was tben owned and maintained by tbe defendants, and was seriously injured wben sbe stepped upon some “slick and slippery substance” on tbe tile floor at tbe entrance of tbe stairway and fell. In August thereafter, tbe plaintiff brought suit to recover damages alleged to have been caused by tbe negligence of tbe defendants. At tbe trial tbe jury first returned tbe following verdict:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: ‘Yes.’

“2. Did tbe plaintiff, by. her own negligence contribute to her injury? Answer: ‘Yes.’

“3. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant ? Answer : ‘$4,000.00.’ ”

Wben tbe jury returned to tbe jury box, and tbe issues were banded to tbe court by an officer, tbe court instructed tbe jury as follows:

“Tbe Court: Gentlemen, you have answered tbe first issue Yes and tbe second issue Yes, and tben assessed damages. Tbe Court instructed you if you should find by tbe greater weight of tbe evidence, tbe burden being on tbe defendants as to that particular issue, that tbe plaintiff, Mrs. Butler, was guilty of contributory negligence as I have defined that to you, that is that sbe was guilty of negligence and that that negligence was tbe proximate cause or one of tbe proximate causes of her injury *712which combined and concurred and co-operated with the negligence of the defendants to produce the injury, that she could not recover. Upon that finding you cannot award damages. I will let you gentlemen retire and revise your verdict as you may see fit.”

To the foregoing instruction and to the action of the court in instructing the jury to revise its verdict, the defendants in apt time objected and excepted.

The jury retired and returned a “second verdict,” with the first and third issues unchanged and the second issue answered “No.” Exception by defendants.

From judgment on the “second verdict,” the defendants appeal, assigning errors.

Gold, McAnally & Gold and Herbert 8. Falk for plaintiff, appellee.

M. W. Nash and Frazier c§ Frazier for defendants, appellants.

Stacy, C. J.

There appears to be no material difference in what transpired in the instant ease relative to the verdict and what appeared in the case of Allen v. Yarborough, 201 N. C., 568, 160 S. E., 833, where a new trial was ordered. Here, the jury was instructed to retire and “revise” its verdict. This revised verdict is mentioned three times in the transcript as the “second verdict.”

There was nothing essentially inconsistent in the “first verdict.” Crane v. Carswell, 203 N. C., 555, 166 S. E., 746. Cf. Wood v. Jones, 198 N. C., 356, 151 S. E., 732. And no suggestion came from the jury of any misunderstanding on its part. The decision in Allen v. Yarborough, supra, is controlling.

New trial.