Two’questions are decisive of this appeal. First, did the court commit error in denying the defendant’s motion to amend the answer by setting up the judgment in the Summey ease? Second, *384did the court commit prejudicial error in failing to charge the effect of plaintiff’s excessive speed, or lack of it, on the issue of plaintiff’s contributory negligence?

As to the first question, did the court act as a matter of discretion (not reviewable) or as a matter of legal right (reviewable) in denying the defendant’s motion to amend the answer by setting up res judicata in bar of plaintiff’s right to recover? The order makes no reference to the exercise of discretion. Likas v. Lackey, 186 N.C. 398, 119 S.E. 763; Muse v. Muse, 234 N.C. 205, 66 S.E. 2d 689; Abernethy v. Yount, 138 N.C. 337, 50 S.E. 696. In view of the lack of unanimity among the members of this Court in these decisions, we prefer to decide the question on grounds other than the failure of Judige Sink to state in his order whether he was acting in his discretion or as a matter of legal right. No doubt the failure to state he was acting in his discretion is entitled to some weight. The facts in this particular instance (each case should stand or fall on its own facts) disclosed that arguments and briefs were presented on the written motion to amend, to which was attached the judgment roll in the Summey case. Immediately following the entry of the order denying the amendment, the defendant filed) exceptions on the ground the court failed to hold, as a matter of law, the present action is barred by the verdict and the judgment in Summey v. Hunt, et al. We attach some importance to the fact the plaintiff does not even argue that the court acted in its discretion, but does argue the doctrine of res judicata as applied in Pack v. McCoy, 251 N.C. 590, 112 S.E. 2d 118; Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E. 2d 673; and Stone v. Coach Co., 238 N.C. 662, 78 S.E. 2d 605, is not applicable to the facts in this case for the reason that here four vehicles were involved, and after the initial collision between the Hunt and Cranford vehicles, the Hunt vehicle continued for some distance and a second collision took place between it and the Summey Chevrolet.

It must be remembered that Summey charged each of the defendants with negligent acts which caused the Hunt truck to be deflected into his lane of traffic. In short, he alleged his damage resulted from the combined negligent acts of all defendants. The verdict returned and the judgment rendered after full hearing support Summey’s allegations.

We express no opinion on the validity of the defendant’s plea of res judicata. Enough appears, however, to show the defendant was entitled to set it up. This he did) at his first opportunity. This action was instituted and the original pleadings filed before the Summey *385action was begun. Though subsequently brought, the Summey case'was first tried. ^

The plaintiff argues Hunt’s liability to Summey may have arisen by some negligent act or omission on Hunt’s part after his truck col« lided with Cranford’s Plymouth. On the other hand, the defendant contends that Summey charged all defendants with concurrent actfei of negligence andi that Hunt’s truck was out of control as a result of the first collision, and no intervening act contributed to Summey’s injury. See Aldridge v. Hasty, 240 N.C. 353, 82 S.E. 2d 331.

As stated in the Pack case, our decisions go no further than to hold! a finding and judgment against two or more defendants charged with joint and concurrent negligence establish their negligence and; may be pleaded in bar by one defendant against another in a sub-' sequent action between them based on the negligent acts at issue in’ the first cause. Such is the view of the majority of the members of this Court. However, there is persuasive authority in other jurisdictions to the effect that a judgment against two or more defendants does not determine their rights among themselves, unless their respective-rights are placed in issue by cross or adversary pleadings. We do nob wish to extend the scope of the Pack and Lumberton Coach Company cases. However, the defendant’s showing- is sufficient to entitle him as a matter of right to amend his pleadings by setting up the Summey-judgment as a plea in bar. Whether he can establish the plea 'as: properly applicable in this case must await the further hearing. ■- -:

We now deal with the second question. The defendant pleaded' as: contributory negligence on the part of the plaintiff his speed of 65! miles per hour at the time of the accident. One witness testified in his opinion the speed of the truck was “anywhere from 60 to 65 miles', per hour, probably more.” Another witness testified that the speed: of the truck was 65 miles per hour or more. The allegation and the evidence offered! required the court to charge the jury as to the effect! of excessive speed on the issue of plaintiff’s contributory negligence.: This the court failed to do. The failure was prejudicial error. Primm v. King, 249 N.C. 228, 106 S.E. 2d 223; Kolman v. Silbert, 219 N.C. 134, 12 S.E. 2d 915; Spencer v. Brown, 214 N.C. 114, 198 S.E. 2d 630.

This case is remanded to the Superior Court of Davidson County with direction that the defendant’s motion to amend his answer ,bfe allowed, and that there be a

New trial.

Concurring in result. It is agreed that the failure of “the Court to charge the jury as to the effect of excessive speed on *386the issue of plaintiff’s contributory negligence” is prejudicial and entitles defendant to a new trial.

But it seems to me that the court was correct, as a matter of law, in denying defendant’s motion to be permitted to plead the judgment in the Summey case as res judicata of the instant case. It is true that the judgment in the Summey case has judicially established that Hunt and Cranford were concurrently negligent with respect to the collision between Hunt’s pickup and Summey’s vehicle, and that the negligence of each was a proximate cause of the Hunt-Summey collision. But it does not necessarily follow that their negligence concurred with respect to the Iiunt-Cranford collision, or that the negligence of either was a proximate cause of the Hunt-Cranfordi collision. The two collisions were distinct. The alleged speed of the Hunt vehicle might well have been a proximate cause of Summey’s damage and not a proximate cause of the Hunt-Cranford collision. Summey’s allegations of negligence against Hunt included all of Cranford’s allegations of contributory negligence against Hunt, and in addition the allegation of failure to yield one-half of the highway width. This last allegation might well have been the basis of the jury’s finding of actionable negligence on the part of Hunt.

In the majority opinion it is said: “We do not wish to extend the scope of the Park and Lumberton Coach Company cases. However, the defendant’s showing is sufficient to entitle him as a matter of right to amend his pleading by setting up the Summey judgment as a plea in bar. Whether he can establish the plea as properly applicable in this case must await the further hearing.”

.. The pleadings and issues in both cases and the judgment in the Summey case are before us. What, in the further hearing, would render the plea applicable so as to bar the action? If anything, it would of necessity be the evidence. If it developed from the evidence that plaintiff was eontributorily negligent as a matter of law or by reason of the jury’s verdict, this would bar recovery by plaintiff in any event and the plea of res judicata would be needless surplusage.

concurring in part and dissenting in part. We concur in the award of a new trial for error in the charge but are of the opinion that, for reasons set forth in the dissenting opinion in Pack v. McCoy, 251 N.C. 590, 593, 112 S.E. 2d 118, the court properly denied defendant’s motion for leave to plead the judgment in the Summey case as res judicata.