#### MRS. MARGARET T. BURNS, Administratrix of the Estate of BEVERLY J. BURNS, Deceased, v. A. H. GARDNER and Wife, LEILA S. GARDNER.

(Filed 12 October, 1955.)

Appeal and Error § 38—

Where the Supreme Court is evenly divided in opinion, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by defendants from Patton, Special Judge, June Term, 1955, of Mecklenburg.

This is an action to recover for the wrongful death of Beverly J. Burns, a girl ten years of age, as a result of falling into and drowning in an artificial lake on defendants’ premises.

The plaintiff alleges that the lake had been stocked with fish and had ducks thereon and a rowboat; that the boat was neither locked nor securely tied to prevent its use by children of tender years. The plaintiff further alleges that the lake had become a common resort where children of tender years from the nearby residential area visited, fished, chased ducks and otherwise sought sport and pleasure in and around said lake, and that the defendants had actual knowledge that it was being so used.

The defendants interposed a demurrer to the complaint on the ground that it does not state a cause of action. The demurrer was overruled.

From this ruling, the defendants appeal, assigning error.

Bay S. Farris and James B. Ledford for plaintiff.

Charles W. Bundy for defendants.

Per Curiam.

When this appeal was heard in this Court, two of its members, Winborne and Higgins, JJ., were not sitting. However, Devin, Emergency Justice, was sitting in lieu of Winborne, J. The six members of the Court being evenly divided in the opinion as to whether the ruling *732of the court below should be sustained, the judgment of the Superior Court is affirmed and stands as the decision in this action without being a precedent. Insurance Co. v. Stinson, 214 N.C. 97, 197 S.E. 751.

Affirmed.