dissenting.
Tlie majority concludes that under the present state of our law, the violation of a motor vehicle operational statute creates a disputable presumption of negligence which may be rebutted by a shoiving that the actor, in violating the statute, was acting reasonably. I disagree. In my opinion, our prior cases have established the stricter doctrine of negligence per se, with only limited exceptions.
In Marshall v. Olson, 102 Or 502, 202 P 736 (1922) the court first adopted the “emergency” exception to the rule that violation of an operational statute is negligence per se:
“* * * But this [rule of negligence per se] must be taken with some degree of qualification, so that, if it is necessary in an emergency, under all the circumstances, to avoid an accident, to turn otherwise than the ordinance or law prescribes, it could not be counted upon as evidence of negligence, or as negligence itself. Before this qualification.can be relied upon, it must of course appear from the evidence that a sudden and perilous emergency was present sanctioning, in the judgment of reasonably prudent men, the doing of the act which under the circumstances would be a technical breach of municipal regulations. * * *” 102 Or at 512.
In LaVigne v. Portland Traction Co., 179 Or 221, 170 P2d 709 (1946) the court held that the defendant acted as a reasonably prudent person in an emergency situation:
* * He was suddenly faced with danger from an automobile, obviously out of control and coming toward him on its wrong side of the street. * * * He took the only avenue of escape open, and there would have been no accident but for the unforeseeable action of the LaVigne car, which suddenly *82changed its course, went back to the side of the road from which it had come, and, without slackening its speed, collided with the bus.
“It seems hardly necessary to add that the statute (§115-327, O.C.L.A.), which requires the operation of vehicles on the right-hand side of the highway, has no application in the circumstances of this case. * * *”179 Or at 227.
In Gum, Adm. v. Wooge, 211 Or 149, 315 P2d 119 (1957), the court held that, although violation of the statute requiring a driver to keep on the right half of the road is negligence per se, the statute is not an absolute requirement:
“* * * Furthermore, the statute is not considered violated in instances where the driver, acting as a reasonably prudent person, turns to the left to avoid a collision with an approaching vehicle traveling in its wrong lane. * * *” 211 Or at 158.
In Raz v. Mills, 231 Or 220, 372 P2d 955 (1962) the court said that if the defendant was not at fault in causing the emergency,
“* * * then, if the jury should find that there was such an emergency, the defendant might be excused for her failure to remain on her own side of the road.” 231 Or at 229.
All of these cases involved violations of operational statutes, and all recognized as an excuse only the existence of an emergency.
Then, in McConnell v. Herron, 240 Or 486, 402 P2d 726 (1965), we considered the problem of violations of safety equipment statutes. Drawing on the cases involving operational statutes, we concluded that a limited type of excuse should also be available in equipment statute cases. The rule for such eases we phrased as follows:
“* * * Any violation of a statutory standard *83of care is negligence as a matter of law except that it may be excused where the party who failed to comply with the statute shows that his violation was caused by circumstances beyond his control and that it was, under the circumstances, impossible, regardless of the degree of care he might have exercised, for him to comply with the statute.” 240 Or at 490.
This standard was later modified to make it clear that the actor need not show literal impossibility of compliance, but need only show that the defect in his equipment could not have been discovered by the exercise of the highest degree of care. Ainsworth v. Deutschman, 251 Or 596, 600, 446 P2d 187 (1968).
In Pozsgai v. Porter, 249 Or 84, 435 P2d 818 (1968) plaintiff contended that defendant, whose vehicle was on the wrong side of the road at the time of the collision, could be excused for a violation of the •statute only if it was impossible for him to comply by the exercise of the highest degree of care. We held that the standard adopted in McConnell v. Herron, supra, was not applicable to cases involving operational statutes. The opinion contains the following statement, from which the trial court’s instruction in the present case was apparently taken:
“* * * These cases hold that an individual violating such a statute can excuse his conduct by showing that he could not or should not have complied by the exercise of reasonable care. Driving on the wrong side of the road, Raz v. Mills, 231 Or 220, 372 P2d 955 (1962); Gum, Adm. v. Wooge et al, 211 Or 149, 315 P2d 119 (1957); La Vigne v. Portland Traction Co., 179 Or 221, 170 P2d 709 (1946); illegal turning at intersection, Marshall v. Olson, 102 Or 502, 202 P 736 (1922). * 249 Or at 87.
*84Although the eases cited here all involved sudden emergencies, as I have pointed out above, the opinion in Pozsgai failed to incorporate that element into the statement of the rule applicable to operational statutes. This was apparently the result of an oversight. Pozsgai was a sudden emergency case, and the element of emergency was recognized elsewhere in the opinion. For example, the court said:
“The present case is identical to Raz v. Mills, supra. In both the present case and in Ras the defendant ivas on the wrong side of the highway and sought to excuse himself because of an emergency situation. * * *” 249 Or at 87.
The court also said:
“* * * B'e that as it may, the violation here was that of an operational statute and we specificallv approve the Raz rule in violations of that sort.” 249 Or at 88.
The Raz rule which was expressly approved in Possgai was stated as follows:
“A defendant relying upon an emergency to explain his conduct must show that he was faced with a sudden danger, in light of which his conduct measures up to the standard required of a reasonable man faced with a similar emergency. See Restatement, 2 Torts 796, § 296 (1934). However, as we have said in a number of cases, a person whose own negligence contributes to the emergency cannot take refuge in the emergency to escape liability for his own fault. * * *” 231 Or at 228.
In Owre v. Crown Zellerbach Corp., 260 Or 454, 457, 490 P2d 504, 505 (1971), Holman, J., who was the author of the Possgai opinion, said:
“* * * So far, all cases in which juries have been allowed to decide whether the violation of an operational statute might be excused have been *85ones in which sudden and unanticipated emergencies were involved.”
See, also, Harrison v. Avedovech, 249 Or 584, 439 P2d 877 (1968), decided shortly after Possgai, in which we approved a jury instruction allowing the emergency defense to a violation of an operational statute.
In Tokstad v. Lund, 255 Or 305, 306-307, 466 P2d 938 (1970), upon which the majority’relies, we said:
“A statute requires a driver to stay upon his own side of the highway and the law in this state is that a violation of a statute is negligence per se. Nevertheless, we have held that a failure to stay upon the right side of the road is not negligence per se if the offending driver went on the wrong side through no fault of his own. Raz v. Mills, 231 Or 220, 227-228, 372 P2d 955 (1962); Harrison v. Avedovech, 249 Or 584, 588-590, 439 P2d 877 (1968).”
Both Raz and Harrison were, as pointed out above, sudden emergency cases. Pozsgai was not mentioned in the Tobstad opinion, and the rationale of the case on this point is not clear. "What is clear is that the court’s attention was primarily focused on another issue, which determined the disposition of the ease. I do not believe that we intended in Tobstad to initiate a change in the law of statutory negligence. Certainly we had no such intention in Mennis v. Highland Trucking, Inc., 261 Or 233, 492 P2d 464 (1972), in which Tobstad was cited in dicta and prior cases were not mentioned.
In my opinion Tokstad should be disapproved or limited to its facts. Our other cases clearly hold that the violation of a motor vehicle operational statute is negligence per se, except when there is evidence from which the jury could find that the actor was *86confronted with a sudden emergency and, in the face of that emergency, acted reasonably. The instruction given in the present case permitted the jury to excuse a statutory violation if it believed the defendant was acting reasonably, without regard to the existence of an emergency. I believe this instruction was an incorrect statement of the law and, under the facts of this case, was prejudicial to plaintiff. I dissent.