Tbe case was brought back because of an. alleged oversight in disposing of tbe following question presented by tbe 11th exception : In an action involving a highway injury, where there are statutes on tbe subject, some of evidentiary significance, and tbe general principles of tbe common law are also applicable, is it a sufficient compliance with tbe provisions of C. S., 564, for the trial court to instruct tbe jury on tbe general principles of negligence and contributory negligence without any reference to tbe pertinent statutes?
In originally upholding tbe judgment, tbis question was inadvertently answered sub silentio in the affirmative. Tbe authorities are to tbe contrary. Kolman v. Silbert, ante, 134, 12 S. E. (2d), 915; Smith v. Bus Co., 216 N. C., 22, 3 S. E. (2d), 362; Spencer v. Brown, 214 N. C., 114, 198 S. E., 630; Williams v. Coach Co., 197 N. C., 12, 147 S. E., 435; and Bowen v. Schnibben, 184 N. C., 248, 114 S. E., 170. These cases all deal with tbe question here presented. They are at one in bolding that tbe duty of tbe judge to declare and explain tbe law arising upon tbe evidence in a case means that be shall declare and explain the statutory law as well as tbe common law arising thereon.
Speaking directly to tbe point in tbe case last cited, it was said: “. . . where a statute appertaining to tbe matters in controversy provides that certain acts of omission or commission shall or shall not constitute negligence, it is incumbent upon tbe judge to apply to tbe various aspects of tbe evidence such principles of tbe law of negligence as may be prescribed by statute, as well as those which are established by tbe common law.”
Tbe latest expression on tbe subject is to be found in Kolman v. Silbert, supra, decided 31 January, 1941: “In automobile cases where tbe alleged negligence rests in tbe violation of one or more of tbe provisions of tbe law governing tbe operation of motor vehicles enacted, *825designed and intended to protect life, limb and property, it is mandatory that the Judge in his charge shall state, in a plain and correct manner, the evidence in the case and declare and apply the pertinent provisions of the Motor Traffic Law.”
It is in evidence that the plaintiff was driving down a steep mountain road, then under construction, and covered with loose crushed stone, four or five inches deep. Plaintiff was familiar with the road and its condition. He knew the defendant was at work there with trucks and other machinery. Defendant’s truck, loaded with stone, was proceeding up the hill, an 8% grade. The plaintiff says he did not see the truck until within 30 feet of it, that it was on the wrong side of the road. The plaintiff ran onto the soft shoulder in order to avoid a collision, his car turned over, and he was injured.
There is evidence that plaintiff was driving “real fast,” as he came around the curve and down the grade, “swinging around — the stone was flying. He was making around 50 miles an hour.”
The plaintiff testified: “As we rounded the curve we met the truck right in the face. ... I put on my brakes when I first saw the truck. I didn’t stop; it wouldn’t stop, wouldn’t hold on gravel. . . . I was going 15 miles an hour when I first saw the truck. . . . The defendant’s truck struck me with his rear end as he attempted to pull out of the way.”
The defendant’s evidence tends to show that the plaintiff’s car did not collide with the truck at all, but passed the truck, plowed into the soft shoulder, and was turned over when the plaintiff undertook to cut sharply back into the graveled portion of the highway.
From the foregoing it appears that in respect of the issue of contributory negligence (which issue is inappropriately worded) there is evidence tending to show the plaintiff was traveling in excess of the speed limits set out in the Motor Yehicle Law, or at a speed greater than was reasonable and prudent under the conditions then existing, which, by the statute, is made prima facie evidence of negligence, or that the speed is not reasonable or prudent and that it is unlawful. Ch. 401, Public Laws 1931, sec. 103. Morris v. Johnson, 214 N. C., 402, 199 S. E., 390. The judge in his charge to the jury made no reference to any of the applicable provisions of the Motor Yehicle Law, notwithstanding the defendant’s plea and the evidentiary significance of such provisions. "Where the issue of liability is sharply disputed, as it is on the instant record, the parties are entitled to have the court hew to the line and let the chips fall wherever they may. Such was the holding in Robinson v. Transportation Co., 214 N. C., 489, 199 S. E., 725; Farrow v. White, 212 N. C., 376, 193 S. E., 386; Orvis v. Holt, 113 N. C., 231, 91 S. E., 948; Matthews v. Myatt, 172 N. C., 230, 90 S. E., 150. The decisions *826in Ryals v. Contracting Co., ante, 479; Mack v. Marshall Field & Co., 218 N. C., 697, 12 S. E. (2d), 235; and Smith v. Kappas, post, 850, are likewise in full support of tbis view.
Tbe conclusion heretofore reached that the judgment should be affirmed will be vacated and the cause remanded to the Superior Court of Buncombe County for a new trial. Ch. 117, Public Laws 1941.
Seawell, J., dissents.