#### GUSS ALSTON v. ANNE H. HERRICK

No. 540A85

(Filed 7 January 1986)

Plaintiff appeals as a matter of right, pursuant to G.S. 7A-30Í2), from a decision of a divided panel of the Court of Appeals, 76 N.C. App. 246, 332 S.E. 2d 720 (1985), ordering a new trial for failure of the trial court to submit to the jury the question of contributory negligence. Heard in the Supreme Court 19 December 1985.

Epting & Hackney, by Joe Hackney, for plaintiff-appellant.

Bryant, Drew & Patterson, P.A., by Lee A. Patterson, II, for defendant-appe lie e.

PER CURIAM.

The decision of the Court of Appeals is

Affirmed.