#### WILBURN MARLIN BURKE v. CAROLINA & NORTHWESTERN RAILWAY COMPANY.

(Filed 26 September 1962.)

Appeal and Error § 39—

Where the Justices of the Supreme Court are evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by plaintiff from Sharp, S.J., January 15, 1962 Term, Gas-toN Superior Court.

In this civil action the plaintiff sought to recover damages for his personal injury sustained while he was attempting to hold in place boxes of freight in a partially loaded car during shifting operations. The plaintiff alleged: “The engineer of the defendant operated the defendant’s engine wantonly and recklessly and without regard to . . . the safety of the plaintiff.”

The defendant, by answer, denied negligence and pleaded (conditionally) the plaintiff’s contributory negligence.

At the close of the plaintiff’s evidence the court allowed defendant’s motion for involuntary nonsuit. From judgment dismissing the action, the plaintiff appealed.

Frank Battley Rankin for plaintiff appellant.

W. T. Joyner, Geo. B. Mason, Mullen, Holland & Cooke, by James Mullen for defendant appellee.

Per Curiam.

Justice Sharp, having presided in the court below, did not participate in the decision here. The other Justices, being equally divided as to the propriety of the nonsuit, the judgment of the superior court is affirmed without the decision becoming a precedent.

Affirmed.