concurring.
The testimony was such that there was sufficient evidence from which the jury could find that defendant failed to yield the right of way in entering the highway from a private driveway as required by OKS 483.206 (2). Before defendant was entitled to the qualifying instruction there had to be testimony Horn which the jury could find that he was acting reasonably despite the statutory violation.
In my opinion there was no such testimony. The evidence discloses that the collision occurred either at the center line or on the far side of the road from the private driveway. Defendant states his position as follows:
“* * * Defendant’s driver was merely intending to pull as far as the centerline and then back again into the driveway. Therefore, his main attention had to be directed to the lane in which he intended to block, i.e. the west bound lane. This necessarily directed his attention away from traffic approaching from the east, the direction in which the plaintiff was coming. Further, this move*186ment was made where traffic approaching from the driver’s right had at least 1,000 feet in which to observe the movements of the crew cab.
“With this evidence in the record, the court should have permitted the jury to consider whether or not the driver of the crew cab was acting reasonably in spite of the statutory violation * *
Assuming the underlying facts stated as a basis for defendant’s position to be true, they disclose no basis for a finding that a violation of the statute, if it occurred, was reasonable.
I would further hold that, in any event, defendant was in no position to raise the question on appeal. Defendant only objected to the instruction on right of way given by the court because it did not include the qualifying instruction and did not request the qualifying instruction to which he now says he was entitled. It is my belief that before defendant is entitled to raise on appeal the issue of failure to give the qualifying instruction, he must request such qualifying instruction in written form.
McAllister, J., joins in this concurring opinion.