dissenting:
The majority find that Jury Instruction Nos. 16 and 17 require the jury to find that Damjanovich was negligent as a matter of law for driving in the emergency lane and such driving was the proximate cause of his injuries. In effect, the majority conclude that Damjanovich was instructed out of court based on the fact that the collision occurred in the emergency lane without any consideration given to whether a reasonably prudent person in the same circumstances might also have been driving in the emergency lane. The majority conclude by holding that driving in the emergency lane is not unlawful, hence, reverse and remand the case for a new trial because the jury was instructed that such action is unlawful.
I would affirm because (1) it is unlawful to drive in the emergency lane under the facts of this case, and (2) the jury was improperly instructed.
The facts of this accident must be noted to place the case in context. Defendant was driving in the emergency lane and rear-ended a parked car.
Driving in the emergency lane is unlawful — thus, negligence per se. However, liability will attach only if such unlawful act is the proximate cause of some injury.
Instruction No. 16 is section 61-8-331(2)(a) and (c), MCA. These statutory sections prescribe that on a controlled access highway, no driver shall cross any curb, céntral dividing section or other dividing line. It further provides that *462vehicles must be driven in the proper lane, in the proper direction and to the right of the central dividing line. Also, section 61-1-206, MCA, defines a roadway as any portion of a highway used for vehicular travel excluding the shoulder or the berm. The plain meaning of the above statutory sections mandates that one must drive only in the proper lane of travel and the emergency lane is not the proper lane of travel. Damjanovich’s actions were unlawful and the jury determined they were the proximate cause of his injuries.
Damjanovich’s actions could be excused by the sudden emergency doctrine. However, the lower court refused the instructions. The Eslinger opinion established certain findings that must be made before a sudden emergency doctrine instruction is given. Under the facts of this case, these requisite findings could not be made. It is very questionable that , an emergency actually or apparently existed. Appellant has no other witnesses to testify to the alleged emergency. The appellant’s testimony is the only evidence of the potential disaster. Second, appellant did not mention the alleged emergency until several days after the accident. Third, there was no physical evidence of evasive action taken by the appellant. Finally, there was testimony that the appellant was aware of the parked car; thus, he should have anticipated it. The evidence is simply insufficient to support a finding that an emergency existed.
Furthermore, the jury was properly instructed with respect to Damjanovich’s case. First of all, the jury was instructed that if Damjanovich’s actions were negligence per se, such negligence was of no consequence unless it was the proximate cause of some injury. The jury found the negligence and the requisite proximate cause. Second, evidence was presented, and the jury was instructed on possible statutory violations by Light and Damjanovich. The jury weighed the evidence, applied the law and, under the doctrine of comparative negligence, concluded that the negligence of Damjanovich was far greater than that of Light. This Court should not disturb that finding.
*463I would, however, agree with the majority that there are certain situations that would require driving in the emergency lane and under such circumstances such action would not constitute negligence per se. For example, drivers must often swerve to the right or drive a temporarily disabled vehicle in the emergency lane to avoid traffic impediment. However, this case is not one of these emergency situations.
For the foregoing reasons I would affirm the jury verdict and the District Court’s judgment entered thereon.