An excused violation of a legislative enactment is not negligence. However, where there is no valid excuse for the violation, a finding of negligence per se is appropriate.
Petitioner trucker collided with and injured respondent accident victim when he was illegally passing on the left within 100 feet of an intersection, in violation of a criminal statute. Because the trial court found negligence per se against petitioner, it did not submit any negligence issues to the jury. Petitioner sought review and the lower court affirmed the finding of negligence per se, but reversed and remanded for a new trial because the jury did not make a special finding on the negligence issues of justification or excuse. Petitioner appealed, claiming that the lower court should have rendered judgment on his behalf.
Was there a legally acceptable excuse for a driver’s violation of the statute by voluntarily passing near an intersection?
The driver made his move deliberately, with knowledge of the law and with at least notice of the presence of the highway intersection. There was no impossibility, no reason for any particular hurry, no emergency, and no incapacity. The problem of greater risk of harm is not involved. If there was an emergency, it was only after the statutory violation had begun, and was due in large part to his own deliberate conduct.