specially concurring.
I specially concur simply to draw attention to the fact that the conflict in views represented by the majority and dissenting opinions stems from the evil of recognizing the doctrine that the violation of a statute is negligence per se. In my specially concurring opinion in Henthorne v. Hopwood, et al, 218 Or 336, 339, 338 P2d 373, 345 P2d 249 (1959), and again in my dissent in McConnell v. Herron, 240 Or 486, 494, 402 P2d 726 (1965), I stated my reasons for the abolition of the doctrine. In Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972), the court eliminated a part of the objectionable features of the doctrine but retained the basic idea that the violation of a statute is given a special effect in tort cases in the form of creating a presumption of negligence. The retention of this vestige of the doctrine now comes back to haunt us in the present case when it is used by the dissent as the start*194ing point for reasoning that defendant could not get to the jury because his assertion that "something * * * went out from underneath the car” as an explanation for being in plaintiff’s lane of traffic was not sufficient to rebut the presumption of negligence created by statute.
As I tried to explain in McConnell v. Herron, supra, I do not understand why the violation of the statute should be given this effect. If the violation of the statute is not given any special effect, defendant’s explanation for being -in the plaintiff’s lane should be submitted to the jury. It is possible that something did happen underneath the car which caused it to swerve; it is also possible that defendant was lying. This, then, becomes a question of defendant’s credibility, a question upon which many cases turn including automobile accident cases. If we demand that defendant produce additional evidence to buttress the credibility of his assertion, or explain why he cannot, we will inject into the law of evidence a new kind of a "best evidence rule” applicable to cases not involving written instruments.