
    NORFOLK SOUTHERN RAILWAY COMPANY v. Wayne SMITH.
    No. 280P05.
    Supreme Court of North Carolina.
    November 3, 2005.
    Russell L. McLean, III, Waynesville, for Wayne Smith.
    E. Thomison Holman, Asheville, for Norfolk Southern Railway Co.
    ORDER
   Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 23rd day of May 2005 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the Plaintiff, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is

"Allowed by order of the Court in conference, this the 3rd day of November 2005."

Upon consideration of the petition filed on the 23rd day of May 2005 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:

"Denied by order of the Court in conference, this the 3rd day of November 2005."

Justice MARTIN recused.  