(dissenting).
Chief Justice LA PRADE and I agree that the order of the court below granting a new trial should be affirmed. Driving a motor vehicle in an unsafe mechanical condition is negligence per se1. Doubtless plaintiff could have pleaded the violation of the statute as a specific act of negligence, but this plaintiff did not elect to do. Instead he relied on common-law negligence. Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341, which essentially is the failure to use ordinary care. In determining whether ordinary care has been used in any given situation, it is necessary to examine all of the relevant circumstances surrounding the accident. The condition of the steering mechanism of defendant’s vehicle is one of the relevant circumstances to be weighed by the jury in determining whether the defendant drove his automobile “in such a careless and negligent manner as to cause the same to overturn”.
We are unable to agree with the majority view that there is a distinction between the mechanical condition of the vehicle and other physical conditions then and there existing at the time of the accident because all the physical conditions must necessarily govern the manner in which the defendant drove his automobile and the duty to use due care to prevent injury to one in plaintiff’s position. We believe that it is possible for reasonable men to conclude that if the defendant had been driving at a slower rate of speed he would have been able to control the automobile so that it would not have “wandered” off the highway and the accident and resulting injuries would not have occurred. Therefore the trial court was correct in deciding that this case should have been submitted to the jury for a determination of the question of negligence.
LA PRADE, C. J., concurs.. Section 66-183, A.C.A.1939, as amended A.C.A.Supp.1952, provides that “No person shall drive or move on any highway any motor vehicle, * * * unless * * * said vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.” Section 66-173, A. O.A.1939 as amended A.C.A.Supp.1952, provides that it is a misdemeanor for “any person to drive or move * * * any vehicle * * * which is in such unsafe condition as to endanger any person * * * ."