(dissenting).
It is the duty of the court to instruct the jury as to the law of the case, SDC 1960 Supp. 33.1317. This should be done in such manner that the controlling principles are made clear to *223the jury. The obligation of the jury is to accept the same and give • effect thereto. This duty, purpose, and obligation are not fulfilled, if the instructions are so deficient or unclear that the jury is required to speculate as to what the applicable law is.
It is probably true that one possessed of legal training could read the challenged instruction and discern therefrom that it should be considered in connection with the broader rule requiring due care generally. But it seems to me that the ordinary juror from reading it would conclude that it required something more than due care of the motorist turning from a direct tine. To this extent it is ambiguous.
The phrase "shall first see that such movement can be made in safety" could easily and rationally be understood to place on such person an absolute rather than a relative duty. In other words, that he makes the turn at his peril. Our opinion in Barnhart v. Ahlers, 79 S.D. 186, 110 N.W.2d 125, points up the existence of this possibility. Courts in other states, before and after Barnhart, under similar statutes show a tike recognition of this danger. Typical of these are Ruperto v. Thomas, 113 Cal.App. 523, 298 P. 851 and Ray v. Anderson, Or., 403 P.2d 372.
In the Barnhart case this court for the first time had occasion to say exactly what conduct SDC 1960 Supp. 44.0317 required of the motorist who was turning his vehicle from a direct tine. While an instruction was not involved it is nevertheless our interpretation of the statute. In accord with the construction generally placed on such statutes we made clear that it did not put on him an absolute duty, but required only that he exercise due care under the circumstances to see that the turning movement can be made with reasonable safety to himself and others. This meaning of the statute differs markedly from what the ordinary person would be likely to conclude that it meant.
I think the court erred in instructing the jury in the language of the statute without advising it of the construction this court had placed on that statute in the Barnhart case. The rule of law which seems to me here applicable was stated in De Legge v. Karlsen, 17 Ill.App.2d 69, 149 N.E.2d 491 in this language: *224"where the courts of review have placed a modified construction upon a statute an instruction given in the language of the statute should be framed according to that construction so as properly to inform the jury of its legal effect." Otherwise it is apt to mislead the jury. See also Louisville and N.R. Co. v. Patterson, 75 Ga.App. 11, 42 S.E.2d 171. Clearly the instructions here given did not do that. The language here used and that used by the courts quoted is limited to the resulting construction of a statute by a court and is differentiated from general language or expression used in opinions. See Roth v. Jelden, 80 S.D. 40, 47, 118 N.W.2d 20, 24.
The court's charge here left each juror free to indulge his own construction of the statute and apply that as the standard of conduct to which the defendant should have conformed under the circumstances he related. For this the judgment should be reversed.
Under a statute similar to ours the question here presented was before the court in Smith v. Clark, 187 Va. 181, 46 S.E.2d 21. It is there written:
"This court has therefore interpreted this language, 'first see that such movement can be made in safety', to mean that it is incumbent upon the driver to use reasonable and ordinary care under the circumstances to see that such movement can be made safely.
"The language of the Code section is however susceptible of a construction that would impose upon the driver a higher degree than reasonable care. It could easily be interpreted by a jury as requiring an absolute duty to negotiate the turn without mishap. To guard against this construction, the court has determined that any instruction using the words of the statute, namely, 'first see that such movement can be made in safety', must be qualified with appropriate language relieving the driver of the burden of insuring the safety of his turn."
In that case it was also urged that another instruction to the effect that the operator of the turning car was required to exer*225cise only reasonable and ordinary care cured the vice in the instruction on the turning statute. This the court rejected and reversed a judgment for the plaintiff saying: "When, how, and in what manner this movement was made was the factual crux of the case. That the jury be correctly instructed thereon was vital and of material importance."
I am unable to read Mills v. Southwest Builders, Inc., 70 N.M. 407, 374 P.2d 289, as supporting the position of the majority. The court there was not concerned with failure to instruct as to a modified construction placed on the statute by a reviewing court. Rather, the instruction there merely omitted the word "reasonable" appearing in the statute — an omission apparently not called to the attention of the trial court.
A California statute, very much like the New Mexico statute, was involved in Lewis v. Franklin, 161 Cal.App.2d 177, 326 P.2d 625. The court there found prejudicial error in an instruction on the statute because it did not use the word "reasonable", and thereby imposed on the driver of the turning vehicle a duty greater than that imposed by the law — the duty of reasonable care under the circumstances. The Lewis case further indicates the language of their turning statute should not be given in an instruction without making clear to the jury that the driver of the turning vehicle is not required to know that the turn can be made with safety, but only that he must exercise reasonable care.
Accordingly, I am compelled to dissent. I am authorized to state that BIEGELMEIER, J., concurs in this dissent.