{
  "id": 8561405,
  "name": "CORTEZ SMART v. WILLIAM HILLARD FOX",
  "name_abbreviation": "Smart v. Fox",
  "decision_date": "1966-10-12",
  "docket_number": "",
  "first_page": "284",
  "last_page": "287",
  "citations": [
    {
      "type": "official",
      "cite": "268 N.C. 284"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "pin_cites": [
        {
          "page": "723"
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    {
      "cite": "266 N.C. 577",
      "category": "reporters:state",
      "reporter": "N.C.",
      "pin_cites": [
        {
          "page": "686"
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      "opinion_index": 0
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    {
      "cite": "120 S.E. 2d 601",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "pin_cites": [
        {
          "page": "607"
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      "opinion_index": 0
    },
    {
      "cite": "255 N.C. 90",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8567323
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      "pin_cites": [
        {
          "page": "98"
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      "case_paths": [
        "/nc/255/0090-01"
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  "last_updated": "2023-07-14T16:01:58.333486+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "CORTEZ SMART v. WILLIAM HILLARD FOX"
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nAlthough defendant offered evidence in sharp conflict therewith, a review of certain of plaintiff\u2019s evidence will suffice to point up the basis of decision. There was evidence which, considered in the light most favorable to plaintiff, tended to show the facts narrated below.\nPlaintiff\u2019s truck was parked on the right shoulder of #160, headed north, with not more than two feet of the truck on the paved portion of the highway. The width of the shoulder was \u201cabout 4% feet at the most,\u201d and beyond the shoulder there was \u201ca small ditch.\u201d Plaintiff\u2019s truck had been so parked \u201ca few minutes \u2014 three or four at the most,\u201d when the collision occurred.\nPlaintiff, accompanied by two helpers, had gone to this location to pick up ten or fifteen bales of hay which, earlier that day through mishap, had fallen from another vehicle by which plaintiff was hauling hay to his farm home.\nPlaintiff\u2019s truck had a flat bed, \u201cwith small sides about two feet.\u201d The tail gate was level with the bed of the truck. Plaintiff was standing on the bed of the truck. The two helpers were loading the hay \u201cover the side of the truck.\" Plaintiff was placing it at the front behind the cab.\nIt was \u201cdusk dark.\u201d The motor on plaintiff\u2019s truck was running and the parking lights and left turn signal were \u201con.\u201d A car proceeding south had passed \u201cprobably a minute or so before the defendant came on the scene.\u201d\nDefendant\u2019s vehicle, a one and one-half ton Studebaker truck pulling a \u201cLow Boy trailer,\u201d was proceeding north on #160. Plaintiff, while standing on the bed of his truck, observed defendant\u2019s said vehicle when it was some 300 yards away. The lights on defendant\u2019s truck were \u201cburning dim.\u201d As defendant\u2019s truck approached, there was no other traffic on the road. Defendant\u2019s truck, which was traveling \u201cat a speed of 50 to 60 mph,\u201d approached plaintiff\u2019s truck \u201cin one steady direction\u201d until, about 125 feet therefrom, defendant-swerved to his left. During the process of swerving to the left and putting on brakes, defendant\u2019s truck-trailer combination jackknifed.\nThe whole front of defendant\u2019s truck struck plaintiff\u2019s truck. The left side of plaintiff\u2019s truck was damaged, particularly the left tail light, left fender and left door. The impact was entirely between the front of defendant\u2019s truck and the left side of plaintiff\u2019s truck. The rear (tail gate) of plaintiff\u2019s truck was not hit.\nThe collision knocked plaintiff from the bed of his truck into the ditch along the east side of the highway.\n\u201cIt is the duty of the court, without request for special instructions, to explain the law and to apply it to the evidence on all substantial features, of the case and to apply the law to the various factual situations presented by the conflicting evidence.\u201d 4 Strong, North Carolina Index (Supplement), Trial \u00a7 33; G.S. 1-180. Plaintiff, by proper exceptions and assignments of error, challenges the charge for failure, in specified respects, to comply with these requirements. Discussion is limited to a consideration of one material omission.\nUnder G.S. 20-141 (b) (3), the maximum legal speed limit applicable to a one and one-half ton truck is 45 miles per hour. The operation of such a truck at a speed in excess of 45 miles per hour is negligence per se. Rudd v. Stewart, 255 N.C. 90, 98, 120 S.E. 2d 601, 607.\nPlaintiff alleged and offered evidence tending to show that defendant\u2019s truck approached the point of collision at a speed of from 50 to 60 miles per hour. Without special request therefor, the court should have instructed the jury that, if they found from the evidence and by its greater weight that defendant was operating his one and one-half ton truck at a speed in excess of 45 miles per hour, such conduct would constitute negligence on the part of defendant. Failure to so instruct the jury was prejudicial error. Bulluck v. Long, 266 N.C. 577, 686, 124 S.E. 2d 716, 723.\nAlthough full consideration has been given defendant\u2019s contention that the negligence, if any, of defendant in respect of speed did not proximately cause the collision, the conclusion reached is that this question was for submission to and determination by the jury under appropriate instructions.\nFor the indicated error in the charge, plaintiff is entitled to a new trial.\nNew trial.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Thomas H. Wyche and J. Levonne Chambers for \u25a0plaintiff appellant.",
      "J. Donnell Lassiter and Kennedy, Covington, Lobdell & Hickman for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CORTEZ SMART v. WILLIAM HILLARD FOX\n(Filed 12 October, 1966.)\n1. Trial \u00a7 33\u2014\nIt is the duty of the trial court to explain the law and apply it to the evidence on every substantial feature of the case arising upon the evidence, even in the absence of. request for special instructions.\n2. Automobiles \u00a7 25\u2014\nThe operation of a truck in excess of 45 miles per hour on a public highway in violation of G.S. 20-141 (b) (3) is negligence per se.\n3. Automobiles \u00a7\u00a7 41b, 46\u2014\nWhere plaintiff introduces evidence that defendant was operating his truck at a speed in excess of 45 miles per hour and swerved to his left in an attempt to avoid plaintiff\u2019s truck which was parked as far as possible on the right shoulder with some two feet on the paved portion of the highway, and that the impact was entirely between the front of defendant\u2019s truck and the left side of plaintiff\u2019s truck, held whether defendant\u2019s excessive speed was a proximate cause o\u00a3 the collision is a question for the jury, and it was error for the court to fail to charge the jury upon plaintiff\u2019s evidence of defendant\u2019s excessive speed.\nAppeal by plaintiff from Jackson, J., March 7, 1966, Schedule \u201cB\u201d Civil Session of MeCKLENbueg.\nPlaintiff\u2019s action is to recover damages on account of personal injuries and property damage he sustained on May 28, 1964, about 7:30 p.m., when defendant\u2019s one and one-half ton Studebaker truck collided with plaintiff\u2019s one-half ton Chevrolet truck. The collision occurred approximately four miles south of Charlotte, N. C., on N. C. Highway # 160, a two-lane paved highway, 18-20 feet wide, having a marked center line.\nIssues of negligence, contributory negligence and damages, raised by the pleadings, were submitted. The jury answered the negligence issue, \u201cNo,\u201d and the court, based on said verdict, entered judgment for defendant.\nPlaintiff excepted and appealed, basing all of his assignments of error on exceptions to the charge.\nThomas H. Wyche and J. Levonne Chambers for \u25a0plaintiff appellant.\nJ. Donnell Lassiter and Kennedy, Covington, Lobdell & Hickman for defendant appellee."
  },
  "file_name": "0284-01",
  "first_page_order": 324,
  "last_page_order": 327
}