#### DEPARTMENT OF TRANSPORTATION v. DOLPH D. OVERTON, III, and wife, SUE H. OVERTON, and CSX TRANSPORTATION, INC.

No. 426PA93

(Filed 17 June 1994)

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 111 N.C. App. 857, 433 S.E.2d 471 (1993), reversing and remanding the judgment of Farmer, J., entered on 13 February 1992 in Superior Court, Johnston County. Heard in the Supreme Court 10 May 1994.

Michael R. Easley, Attorney General, by Eugene A. Smith, Senior Deputy Attorney General; Robert G. Webb, Special Deputy Attorney General; and John F. Maddrey, Assistant Attorney General; for plaintiff-appellant.

Maupin Taylor Ellis & Adams, P.A., by Gilbert C. Laite, III, and Charles B. Neely, Jr.; and Stephen H. Shook, Senior Counsel, CSX Transportation; for defendant-appellee CSX Transportation, Inc.

PER CURIAM.

DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.