concurring specially:
I think the problem in this case stems from the different view of the facts which is apparent from reading the majority and dissenting opinions. Also there is a failure *772to adequately distinguish between the “sudden emergency” instruction, of which Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), is typical, and the instruction given in this case, which is more appropriately called a “justification” or “excuse” instruction. As the majority opinion points out, one view of the evidence supports the conclusion that Mrs. Mann “drove her car into the parking lane bordering the city street,” ante at 948, and' that in the process her right front tire hit the curb which caused the left rear of her automobile to bounce back into the traveled portion of the roadway. However, the dissenting opinion seems to assume that the Mann vehicle was in the traveled lane of traffic until it “slid into the curb on attempting to turn at the intersection.” Post at 953. Thus the dissenting opinion finds this case “on all fours with” Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964). However, it must be apparent that if the plaintiff Mann did in fact “[drive] her car into the parking lane bordering the city street” and then commenced a right turn which resulted in her sliding into the curb which caused the rear of her car to bounce back approximately 3V2 feet, thus projecting into the traveled lane of the street, we have a case which is substantially different on the facts from Dewey v. Keller, supra.
The instructions at issue in Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), and Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964), were not the same as the instruction at issue here. The text of the instruction from Dewey is set forth in the dissent. Post at 952, fn. 1. This is the standard sudden emergency instruction; it does not refer to or deal with the situation • where negligence is presumed to arise upon proof of violation of a statute or ordinance. As we noted in Hackworth, courts have been extremely critical of the sudden emergency instruction. That instruction is really just a reiteration of the general definitional instructions regarding negligence. As such it is repetitive, places undue emphasis on the theory of the defense, constitutes a comment on the evidence, and is more appropriately a matter for counsel’s argument. Hackworth v. Davis, supra at 107-8, 390 P.2d 422. It is for these reasons, that the Idaho Pattern Jury Instruction Committee recommended that no instruction regarding sudden emergency be given. IDJI 215 (1974).
Significantly, however, the committee did recommend the use, where appropriate, of the instruction given in the instant case. IDJI 211 (1974). See ante at 949. The purpose of this instruction is to inform the jury that it may excuse the violation of a statute which would otherwise amount to negligence per se. It is not a mere reiteration of general principles of negligence, and thus is not subject to the same criticism as the typical sudden emergency instruction.
The justification instruction given in this case listed four possible situations which would excuse a statutory violation amounting to negligence per se. Three of these “excuses” are arguably not relevant to this case and should probably not have been included. The fourth “excuse” refers to an emergency not of the party’s own making, and it was not error to give this instruction.
First, the evidence adduced at trial raised the issue of whether an emergency was presented by the sudden and unexpected presence of Mann’s car in Gonzales’ lane. Second, the evidence sustained the theory that this emergency was caused solely by Mann’s inability to control her car after striking the curb. In any event, the instruction specified that the emergency must not have been of Gonzales’ own making, and therefore the jury was properly entitled to resolve this question if there was any uncertainty as to the source of the emergency. Third, it is clear that Gonzales’ conduct after the emergency arose was an issue. In my opinion, it was the absence of this third factor which caused the Court in Hackworth and Dewey to disapprove of giving the emergency instruction. As the dissent points out, an emergency cannot serve as a justification or excuse to otherwise negligent conduct unless the allegedly negligent conduct occurred after the emergency had arisen. Even though Hackworth and Dewey dealt with a standard emergen*773cy instruction as opposed to the justification or excuse instruction given here, I believe that the requirement that the driver’s post-emergency conduct be at issue is similarly applicable here.
In this case, Mann contends that Gonzales failed to control his automobile in such a way as to avoid collision with Mann’s automobile in violation of I.C. § 49-701(a). Mann also received an instruction to the effect that violation of this statute amounted to negligence per se. Since one view of the evidence — that set out in the majority opinion — suggests that Gonzales’ alleged inability to control his car occurred after he was presented with the problem of avoiding the obstacle presented by Mann’s vehicle bouncing back into his traveled lane of traffic, he was therefore entitled to an instruction informing the jury that they might excuse his inability to stop his car on the basis of the emergency caused when Mann’s vehicle suddenly rebounded into his lane of traffic.
This is a case where the plaintiff was armed with a powerful instruction regarding the presumption of negligence arising from statutory violations, and the defense was given an instruction justifying an exception to that presumption. The theories of both parties find ample support in the evidence in the record. It was not error to give the instruction in question.