(dissenting).
The facts in the present case are basically as stated in the majority opinion, except that there is one critical issue of fact overlooked by the majority. The only independent eyewitness of this accident, Mr. Ronald Johnson, stated in his deposition that the defendant Nephi Voge, at least fifty feet prior to reaching the intersection, was driving at a very slow rate of speed and was over on the extreme right hand side of the road. Mr. Johnson also testified that it appeared that Mr. Voge was lost and that he was looking all around and definitely was not watching the road to the extent that a driver normally would. Although this testimony is largely contradicted by Mr. Voge’s deposition, the conflict in the testimony raises a genuine issue of fact as to the position of the Voge car on the highway immediately prior to the accident.
I.C. § 49-721 requires that in making a left turn on a two-lane highway, a person must be “in that portion of the right half of the roadway nearest the center line thereof * * Resolving all doubts and conflicts in the evidence in favor of the appellant, as is required on a motion for summary judgment (Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962) ), for the purpose of disposing of the motion for summary judgment, it must be assumed that the respondent was negligent as a matter of law for violating I.C. § 49-721 in making a left turn from the extreme right hand portion of the highway and for violating I.C. § 49-724 in failing to give a signal of his intention to turn.
Since there are issues of fact as to the respondent’s negligence, the summary judgment can be affirmed, if at all, only upon the ground that the appellant was contributorily negligent as a matter of law. Referring to Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963), and the fact that the collision in the present case took place on the left side of the center line, the majority hold that the appellant was negligent per se or negligent as a matter of law in attempting to pass the Voge vehicle at an intersection in violation of I.C. § 49-713. This negligence, they hold, overcomes the presumption of due care with which the appellant would otherwise be clothed and requires a summary judgment in favor of the respondents.
Bale v. Perryman, supra, however, recognized generally four exceptions to the rule that violation of a positive safety statute is negligence per se:
“Such circumstances may generally be classified in four categories: (1) Anything that would make compliance with the statute impossible; (2) Anything over which the driver has no control which places his car in a position viola*365tive of the statute; (3) An emergency not of the driver’s own making by reason of which he fails to obey the statute; (4) An excuse specifically provided by statute.”
In Bale v. Perryman, supra, there was no question. that the plaintiff was passing the' defendant at an intersection in violation of the statute. In the present case, on the other hand, there is circumstantial evidence, presented in the deposition of the eyewitness of the accident, from which a jury might find that the appellant was on the left hand side of the highway, not to pass the respondent, but to avoid a collision occasioned by Mr. Voge’s negligence. This evidence, interpreted most favorably to the appellant, shows that Mr. Voge was driving very slowly on the extreme right hand side of the highway, a factual situation which this court has on other occasions stated might constitute an invitation to a following driver to pass. See Woodman v. Knight, 85 Idaho 453, 380 P.2d 222 (1963). See also Adams v. Brown, 37 Tenn.App. 258, 262 S.W.2d 79 (1953). Additionally, Mr. Voge turned suddenly in front of the appellant without giving the proper signal. It is reasonable that on the basis of these facts a jury might find that the appellant was forced into the left hand lane in an attempt to avoid a collision.
In Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968), this court recognized that circumstantial evidence might explain the apparent violation of a safety statute and bring a person- within one of the four exceptions mentioned- in Bale v. Perryman, supra. In Petersen v. Parry, supra, this court held that the facts surrounding the accident sufficiently showed that a driver was on the wrong side of the road only in an attempt to avoid a collision and thus was not negligent per se.
Moreover, the appellant in the present case is clothed with a presumption of due care, which is to be weighed with other facts as evidence on his behalf. Geist v. Moore, 58 Idaho 149, 166, 70 P.2d 403 (1937); Bell, Handbqok of Evidence for the Idaho Lawyer, pp. 238-239. Since on the basis of this evidence reasonable men might reach different conclusions as to why the appellant was in the left lane, whether he was in violation of the statute and, consequently, contributorily -negligent is an issue for the jury. Stallinger v. Johnson, 65 Idaho 101, 139 P.2d.460 (1943); Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966).
The majority state that the appellant has failed to come forward with any opposing materials explaining or justifying his negligence. The deposition of Mr. Ronald Johnson, who observed the Voge automobile immediately prior to the accident, however, presents circumstantial evidence from which the jury could find that appellant was forced into the wrong lane in order to avoid a collision. This court has recognized that circumstantial evidence might be sufficient to defeat a motion for summary judgment. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969).
Even assuming, however, that the appellant wás in violation of I.C. § 49-713 and thus negligent per se, there remains the issue whether such negligence was the proximate cause of the accident,, because contributory negligence will not bar a plaintiff’s recovery unless it proximately caused his injury. Chatterton v. Green, 375 F.2d 258 (9th Cir. 1967), Maier v. Minidoka County Motor Co., 61 Idaho 642, 105 P.2d 1076 (1940).
Proximate cause is generally a question of fact for the jury. Lindhartsen v. Myler, 91 Idaho 269, 420 P.2d 259 (1966) ; Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966); Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964). There are numerous cases from other jurisdictions involving facts identical, or nearly identical, to those in the present case holding that whether contributory negligence in passing at an intersection is the proximate cause of a collision resulting when another car turns left at the intersection without signaling is an issue for the..jury. See. Adams v. Brown, 37 Tenn.App. 258, 262 S.W.2d 79 *366(1953); Oil Transport Co. v. Pash, 191 Kan. 229, 380 P.2d 341 (1963); F. E. Fortenberry & Sons, Inc., v. Malmberg, 97 Ga.App. 162, 102 S.E.2d 667 (1958) ; Jumper v. Goodwin, 239 S.C. 508, 123 S.E.2d 857 (1962). See also Annot. 39 A.L.R.2d 15, § 6 pp. 43-45.
In Jumper v. Goodwin, supra, a case involving a factual situation nearly identical to that in the present case, the ccrtrt stated that
“Here the evidence is readily susceptible of the inference that the negligence on the part of the respondent [in passing at an intersection] did not contribute to the collision as the proximate cause thereof. It is readily susceptible of the inference that had the driver of the truck taken any care or precaution whatsoever, he would have seen the respondent overtaking him and would have seen her turn on her signal lights and start to go around him in ample time to avoid the effect of respondent’s carelessness and prevent injuring her, and that, therefore, the reckless conduct of appellant’s driver was the sole, proximate cause of the collision.” 123 S.E.2d at 860.
Similarly in Adams v. Brown, supra, another case surprisingly similar to the case at bar, the court stated that
“Although negligence per se, we think it is a permissible inference from the proof that plaintiff’s violation of the statute prohibiting passing at intersections was not intentional or willful and that, to some extent, it was invited by the failure of the driver of the truck to give a signal of his intention to turn. We may assume that if such a signal had been given as required by statute plaintiff would not have attempted to pass until the turning maneuver had been completed. On the other hand, reasonable minds might well conclude that plaintiff’s violation of the statute merely placed her in a position to be injured as the proximate result of the violation of another statute by the driver of the truck. If so, her negligence would not be regarded as a proximate cause and would not bar a recovery. 38 Am.Jur., Negligence, Section 13, p. 898.” 262 S.W.2d at 81.
Several other cases have reached the same result on different theories or reasoning. See Madron v. McCoy, 63 Idaho 703, 126 P.2d 566 (1942); Le Blond v. Townsley, 108 Cal.App. 81, 290 P. 1051 (Cal.App. 1930) ; Clark v. Sumner, 72 So.2d 375 (Fla. 1954); Lemkie v. Boice, 329 Mich. 278, 45 N.W.2d 288 (Mich. 1951).
Under the facts of the present case, a jury, weighing the presumption of due care and the evidence that the respondent turned left, without signaling, from the extreme right hand side of the highway, could reasonably find that the appellant was not attempting to pass the respondent at the intersection, but rather was merely attempting to avoid a perilous situation created by the respondents’ negligence. Moreover, even if a jury should conclude that the appellant was negligent in attempting to pass the respondent, it might nevertheless legitimately conclude that this negligence was not the proximate cause of the accident.
“ ‘A motion for summary judgment must be denied if the evidence is such that conflicting inferences could be drawn therefrom, or if reasonable men might reach different conclusions.’' [Merrill v. Duffy Reed Constr. Co., 82 Idaho 410, 353 P.2d 657 (1960) ]
It is generally recognized that the evidence presented at the hearing upon a motion for summary judgment must be liberally construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences which might be reasonably drawn from the-evidence.” Jack v. Fillmore, 85 Idaho at 42, 375 P.2d at 323-324.
For these reasons the summary judgment should be reversed and the case remanded for trial.
HAGAN, D. J., concurs.