(dissenting in part).
I concur in the disposition made of this cause insofar as it affirms the judgment in favor of those who claim through and under Henry Gorman Ritchie, Sr., and Jean Raymond Ludeke, but I do not concur in that part of the judgment which reverses and renders the judgment as to Ronald C. Guyer, and orders that he take nothing.
The jury found the defendants below, Roy C. Rash and Ross C. Watkins, Inc., who are the appellants here, guilty of numerous acts of negligence, of which each was a proximate cause of the collision here involved. Rash and Watkins were the contractors who were rebuilding Highway 81 at the point where the collision occurred. The jury found that appellants failed to have warning signs for persons using Highway 81 at the time and place in question; that they failed to have lighted flares designating the proper path for vehicular traffic use; that they failed to have warning flags designating the proper paths for vehicular traffic use at the time and place in question; that they failed to have a marking down the center of the road in question to designate the proper path for vehicular traffic use at the time and place in question; that each and every one of these acts of negligence was a proximate cause of the collision in which Guyer was injured. All of these jury findings were supported by sufficient evidence and have been upheld by the majority. The jury also found that Guyer did not fail to keep a proper lookout immediately prior to the collision; that he did not fail to keep proper control of his vehicle; that he did not drive his vehicle at a greater rate of speed that a person of ordinary prudence would have driven it under the same or similar circumstances; that Guyer did not drive his vehicle in excess of the posted speed limit of forty-five miles per hour. The only two issues answered by the jury against Guyer were Issues Nos. 30 and 31.
*116“SPECIAL ISSUE NO. 30.
“Do you find from a preponderance of the evidence that Ronald C. Guyer drove his vehicle to the left of the center of the traveled portion of the highway immediately prior to the collision in question?”
The jury answered “Yes.”
“SPECIAL ISSUE NO. 31.
“Do you find from a preponderance of the evidence that the act of Ronald C. Guyer in driving his vehicle to the left of the center of the traveled portion of the highway, if any, was a proximate cause of the collision in question?”
The jury answered “Yes.”
It is quite clear that the question as to whether or not Guyer was negligent in driving his vehicle to the left of the center of the traveled portion of the highway immediately prior to the collision was not submitted to the jury, and unless under all the evidence and circumstances in this case the jury has found that Guyer violated the law in driving on the wrong side of the traveled portion of the highway, without excuse or justification, then the judgment of the trial court in this case should he affirmed. The majority say that Guyer did not expressly plead excuse or justification and did not request an issue on these matters, that such issue was thereby waived, and that he is not now in a position to contend that he was excused and justified for traveling on the wrong side of the highway. With this contention I do not agree. Guy-er is not complaining because special issues on “excuse” and “justification” were not submitted and answered by the jury. He is only contending that appellants waived their right to have the jury pass upon Guyer’s negligence and are hound by the implied finding of the trial court to the effect that Guyer was not negligent.
Rash and Watkins, appellants herein, specifically plead Guyer’s contributory negligence as they were required to do by Rule 94, T.R.C.P., and the burden was upon them to offer evidence and secure findings which would prevent Guyer’s recovery in this case on account of his own contributory negligence. So this presents the question of whether or not under all the facts and circumstances Guyer was guilty of negligence per se or whether or not he was at most guilty of common law negligence, which would be a fact issue to be decided by the jury in the first instance, and if not submitted to them, a matter to be determined by the trial court when he rendered his judgment.
The evidence in this case shows that Rash and Watkins had torn up the road at the point where the collision occurred and had not sufficiently marked that portion of the road which was to be traveled by the public; a duty placed upon them by the provisions of their construction contract. The evidence shows that they had constructed a new Highway No. 81, which was to the west of old Highway 81, and parallel to it, but it was not yet open for travel. Appellants had scraped the top off old Highway 81, and had covered it with loose gravel. They had constructed a paved road with a dark top, which came up to the point near where the collision occurred, and then curved to the left, across to the new highway. Guyer was traveling on this dark top road near the right-hand edge of the pavement when he arrived at the point where the old Highway 81 had been torn up and loose gravel placed over it, and there was nothing to indicate that he should not travel on the loose gravel. There was a sign on new Highway 81, but it was placed at such a position that it could not be seen by Guyer, while he was traveling on the dark-topped pavement. When Guyer arrived at a point near where the collision occurred he suddenly saw a car with bright lights bearing down upon him. The lights were so bright that he could not look at them, and as a result of this sudden emergency the head-on collision occurred.
In determining whether Guyer is guilty of negligence per se as a matter of law, or whether at most he is only guilty of com*117mon law negligence, we must view the evidence in the light most favorable to him. When this is done it would seem that to permit appellants to escape liability in this case because Guyer was unable to determine where the center of the traveled portion of the highway was located, due to the negligence of appellants, would be to permit appellants to profit by their own negligence.
Furthermore, before one could be convicted of violating a criminal law there must he an intention, expressed or implied, to violate the law. It was never intended that •under the circumstances shown in this case a person was to be convicted of failing to ■drive on the right-hand side of the road when, under the confused conditions that •existed on the night of the collision, he was unable to determine where the traveled portion of the highway was, much less where the center line would be. The jury only found that Guyer drove to the left of the •center of the traveled portion of the highway. Guyer would not be permitted to contend that he was ignorant of the law which required him to drive on the right-hand side of the traveled portion of the highway, but he would be permitted to contend that, under all the facts and circumstances as shown in this case, he did not know where the traveled portion of the highway was located, much less the right or left side thereof. Art. 41, Vernon’s Ann.Texas Penal Code reads as follows:
“If a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal he is guilty of no offense, but the mistake of fact which will excuse must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct, and it must also be such mistake as does not arise from a want of proper care on the part of the person so acting.”
Guyer was entitled to offer evidence and argue to the jury that he was not guilty of negligence per se, for all of these reasons and circumstances, and, furthermore, that he was not even guilty of common law negligence. Rule 279, T.R.C.P.; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401; Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Permian Mud Service, Inc. v. Sipes, Tex.Civ.App., 339 S.W.2d 81; Davis v. Massey, Tex.Civ.App., 324 S.W.2d 242; Phoenix Ref. Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Bailey v. Walker, Tex.Civ.App., 163 S.W.2d 864; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722.
There can be no doubt in this case that at least the evidence was sufficient to raise an issue as to excuse and justification for Guyer’s wrong-side driving, and that therefore he was not guilty of negligence per se. The issue of common law negligence was not requested or submitted to the jury, and under all the facts and circumstances in this case it was the duty of appellants to secure a finding of the jury that Guyer was guilty of common law negligence in driving on the wrong side of the traveled portion of the highway, if they were to defeat their liability on their defense of contributory negligence. Appellants failed to do this, and thus they waived a jury finding on Guyer’s negligence and in effect agreed that the issue might be decided by the trial court when he rendered his judgment. Rule 279, T.R. C.P.
When the trial court rendered judgment in favor of Guyer, it in effect determined that he was not guilty of negligence per se, and found as a fact that he was not guilty of common law negligence, and therefore was entitled to recover his damages.
The majority contend that Guyer should have requested a special issue on justification and excuse. It is plain that he would not have been entitled to such an issue under his general denial, and I agree with the majority that the court did not err in failing to submit such an issue. Rule 279, T.R.C.P. But this does not excuse the appellants for their failure to secure the submission of an issue, together with a jury finding thereon, which was vital to their defense as to whether or not Guyer was guilty of negligence for wrong-side driving at the time and place *118of the collision. This matter is made very-plain by Professor Hodges in his book on Special Issue Submission in Texas. Section 17, page 46, reads as follows:
“Under a general denial, however, a party may introduce evidence of inferentially rebutting facts and argue such facts to the jury as presenting evidence demanding a negative answer to his opponent’s issues submitting the elements of his cause of action or defense. For example, the defendant can offer evidence that a third person’s conduct was the sole proximate cause of plaintiff’s injuries, and in his argument to the jury may argue that the issue inquiring if defendant’s negligence was a proximate cause of plaintiff’s injuries should be answered 'no’ because the evidence shows that the third person’s conduct was the only cause and therefore that defendant’s conduct could not be a proximate cause at all. It is quite clear, however, that special pleading is necessary to the submission of an affirmative issue, and that a general denial will not allow the submission of an inferential-rebuttal issue.”
The law concerning the situation which we find here is well expressed in Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, wherein Judge Norvell, speaking for this Court, said:
“As above indicated, the question of applying the provisions of a penal statute as a standard for determining civil liability is one for the decision of the civil court. Likewise, the matter of recognizing an excuse for violation of a penal article, once it has been adopted as a standard, presents a preliminary matter for the court. When a violation of a criminal statute (suitable for determining civil liability) is shown and nothing more, it is wholly unnecessary to submit the reasonably-prudent-man standard of negligence. The violator of the statute is guilty of negligence as a matter of law. (Citing authorities.)
“It would logically follow that whenever evidence is submitted tending to show that the violation of the statute was excusable or justifiable or constituted at most a mere technical violation for which civil liability should not be imposed the trial court should submit the reasonably prudent man test in some form. In other words, if the evidence fairly raises the issue of excuse, then, in addition to the question of the commission of a criminal act an issue embodying the reasonably prudent mant standard of negligence should be submitted. (Citing authorities.)
“From a reading of the cases cited, the following rules may be deduced:
“1. A violation of a penal statute which contains an appropriate standard for determining civil liability, constitutes negligence as a matter of law.
“2. This rule is not inexorable-The party violating the statute may assume the burden of going forward with the evidence and raise an issue as. to an excusable violation.
“3. If said party bring forward sufficient evidence to raise the issue (and this is a preliminary matter for decision of the trial court), then the issue of negligence determined by the reasonably prudent man standard should be submitted.
“4. The burden of proof upon this-issue rests with the party asserting-negligence, for upon him rests the burden of proof as distinguished from the burden of going forward with the evidence.”
It is plain that when the record contains; evidence which raises an issue that a plaintiff is to be excused or justified in wrong-side driving, negligence per se passes out of the case, and at most you have remaining a question of common law negligence.
I would affirm the entire judgment of the.trial court.