#### E. F. BLANKENSHIP COMPANY v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, WILLIAM R. ROBERSON, JR., SECRETARY, OF THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, and NORTH CAROLINA STATE HIGHWAY ADMINISTRATOR, BILLY ROSE

No. 205A86

(Filed 6 January 1987)

Appeal and Error 8 64— evenly divided Court — decision affirmed without becoming precedent

Where one member of the Supreme Court did not participate in the consideration or decision of the case and the remaining six justices are equally divided, the decision of the Court of Appeals is affirmed without becoming a precedent.

Justice Webb did not participate in the consideration or decision of this case.

Appeal by plaintiff pursuant to N.C.G.S. 7A-30(2) from the decision of a divided panel of the Court of Appeals, reported in 79 N.C. App. 462, 339 S.E. 2d 439 (1986), which affirmed the dismissal of plaintiffs action by Bailey, J., at the 25 February 1985 session of Superior Court, Wake County. Heard in the Supreme Court 11 December 1986.

Blanchard, Tucker, Twiggs & Abrams, P.A., by Charles F. Blanchard and Donald R. Strickland, for plaintiff-appellant.

Lacy H. Thornburg, Attorney General, by Evelyn M. Coman, Assistant Attorney General, for defendant-appellees.

PER CURIAM.

The Court is evenly divided. Under these circumstances, following the uniform practice of this Court and the ancient rule of praesumitur pro negante, the decision of the Court of Appeals is affirmed, not as precedent but as the decision in this case.

Affirmed.

Justice WEBB did not participate in the consideration or decision of this case.