specially concurs.
I concur in the result, but not in all that is said in the majority opinion.
The majority dismisses negligence on the part of the defendant without discussing defendant’s statutory violation. Is the majority taking the position that defendant was involuntarily across the centerline in the wrong lane of traffic? If so there is support in the law excusing the statutory violation. However, if the defendant made a calculated judgment to leave his lane of traffic for some reason, a holding that a statutory violation is excused represents new law in Montana. The issue is concluded without discussion. The majority simply states that the defendant’s conduct was to be considered by the jury under the “reasonable and prudent person” standard. The defendant’s statutory violation is ignored.
I would reverse the granting of a new trial and reinstate the defense verdict for the reason that the jury could have found that any negligence on the part of the defendant was not a proximate cause of the accident. The record in this case supports the defense verdict on the basis that plaintiffs conduct, rather than the conduct of defendant, formed the sole proximate cause of the accident and consequent injuries to the plaintiff.