Judge, concurring in result.
I agree that the judgment in this case must be reversed and the cause remanded for a new trial. The trial court erred in denying defendant Morrison’s motion for a mistrial based upon the repeated argument of plaintiffs counsel that defendant Morrison had refused to enter into negotiations for twelve years after the accident. This argument was completely outside the issues, was totally unsupported by the record, and was calculated only to inflame and prejudice the jury. The success of this injection of prejudice is evidenced by the fact the jury returned a verdict $40,000 in excess of the amount requested by plaintiffs attorney.
Moreover, the argument of plaintiffs counsel that “if you assess Mr. Currie some fault at this time then she [plaintiff] gets nothing” is an absolute misstatement of the law. By overruling the objection to this argument the trial court put its stamp of approval upon an argument which created an entirely false impression of the effect of the jury’s verdict on the claim of defendant Morrison against defendant Cur-rie seeking apportionment of fault. Again, the prejudicial effect of this misstatement is demonstrated by the fact the jury ignored the undisputed evidence that defendant Currie skidded 180 feet on a dry highway and struck a stopped vehicle only partially into his lane of traffic.
Although I agree with the conclusion that plaintiff’s verdict director, which required no finding of negligence by the jury, was inappropriate under the facts and circumstances shown by the evidence, I reach this conclusion for entirely different reasons than those set forth in Judge Karohl’s opinion. I am unable to find any authority in Missouri which requires the express pleading of a statutory violation as a prerequisite to the submission of such a violation, if shown by the evidence, as negligence per se. Evidence demonstrating a violation of a statutory rule of the road is not subject to objection even though the pleading alleges only common law negligence. Therefore, the failure to object to such evidence cannot be construed as a consensual interjection of an unpleaded issue causing an automatic amendment of the pleadings under Rule 55.33. Although fundamental fairness may better be served by requiring that some notice be given to defendant of a plaintiff's intent to proceed on a statutory violation rather than on the pleaded common law negligence, I am aware of no such requirement in the Rules of Civil Procedure. Trial and appellate courts take judicial notice of Missouri statutes, State v. Miller, 778 S.W.2d 292, 293 (Mo.App.1989), and the parties are bound by at least constructive notice thereof.
My concern with the submission of this case under a negligence per se theory is unrelated to the absence of pleading or notice. Traditionally the circumstances surrounding the violation of a statutory rule of the road were necessarily considered in determining whether or not such a violation constituted negligence per se.
Violation of this traffic regulation under certain circumstances may be negligence per se. Regulations, such as this, however are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions there existing. Duties imposed by some of the “rule of the road” may be qualified by *911circumstances, such as considerations of safety, emergency conditions or impossibility. Deviation from the statutory standard in such circumstances will not be considered negligence per se. Lincoln v. Railway Express Agency, Inc., 359 S.W.2d 759, 765[5] (Mo.1962).
Leonard v. Gordon Transport, Inc., 575 S.W.2d 244, 249 (Mo.App.1978). See also, Edwards v. Mellen, 366 S.W.2d 317, 319-20 (Mo.1963); Wilson v. Shumate, 296 S.W.2d 72, 75 (Mo.1956); McArthur v. Gendron, 312 S.W.2d 146, 150 (Mo.App.1958); Evans v. Colombo, 311 S.W.2d 141, 145-46 (Mo.App.1958).
More recent cases such as Bentley v. Crews, 630 S.W.2d 99 (Mo.App.1981) and Cowell v. Thompson, 713 S.W.2d 52 (Mo.App.1986) appear to suggest that once the technical violation of a statute is shown, a plaintiff is entitled to submit the case under a negligence per se theory. Justification or excuse are treated in these cases somewhat in the nature of an unpleaded affirmative defense upon which the defendant is entitled to an instruction. Cowell, 713 S.W.2d at 55; Bentley, 630 S.W.2d at 105. Under this format, the jury is instructed on behalf of plaintiff that negligence is not an issue and on behalf of defendant that negligence is an issue; a situation described in Bentley as “an obvious incongruity.” Id. at 106. In Cowell, the opinion bemoans the “troublesome omission” from MAI of any pattern instruction on justification or excuse. Cowell at 55.
The absence of negligence has never been considered an affirmative defense and the defendant has never had the burden of proving such absence. I would submit that the incongruity referred to in Bentley is the result of a departure from the traditional concept of viewing statutory violations in the light of the surrounding circumstances before determining whether or not a negligence per se submission is authorized. There would be no need for an instruction on justification or excuse unless a simple absence of exact compliance with a rule of the road is viewed as an absolute, casting upon the defendant the obligation to prove the absence of negligence.
In this case there was ample evidence from which the jury could have concluded that by keeping her vehicle at a stop with its rear end against a snow bank so that she was as far to the right side of the road as practicable under the circumstances, defendant Morrison was not negligent even though a small portion of the vehicle was across the center line. Had she attempted to drive forward in order to get fully on the right side of the road, she would have reduced the distance available for Mr. Cur-rie to stop or swerve slightly to his right and might have caused a more severe collision between two moving vehicles. Under Instruction 7, however, the jury was not given an opportunity to consider that her conduct was free from negligence. Under the circumstances, the submission of plaintiff’s case under a negligence per se instruction was, in my opinion, erroneous.