#### B. M. HAYNES v. WARREN GROVER ELLER and WAYNE GARRISON, a Minor, by his Guardian Ad Litem, JAMES G. GARRISON.

(Filed 14 October, 1959.)

Appeal by defendant, Wayne Carroll Garrison, from McLean, J.. June Civil Term, 1959, of Gaston.

This is a civil action instituted by the plaintiff to recover for damages to his automobile as the result of a collision between said automobile and the defendant Wayne Garrison’s motorcycle, on 22 March 1958, in Cramerton, North Carolina, an unincorporated town.

The defendant Garrison filed an answer denying the allegations of negligence and set up a cross-action or counter claim.

The jury . iswered the first issue with respect to defendant Garrison’s negligence in the negative and the third issue with respect to the plaintiff’s negligence on the defendant’s cross-action also in the negative. From the judgment entered on the verdict, the defendant Garrison appeals, assigning error.

L. B. Hollowell, Grady B. Stott for plaintiff.

J. L. Hamme for defendant Garrison.

Per Curiam.

In light of the theory of the trial in the court below and the charge of the court, there being no allegations by either party with respect to contributory negligence, it is clearly apparent that the jury found both the plaintiff and the defendant Wayne Garrison guilty of actionable negligence.

*85The exceptions and assignments of error based thereon show no prejudicial error that would justify the awarding of a new trial.

No error.

Higgins, J., not sitting.