(dissenting).
I respectfully dissent. I feel Minn.Stat. § 169.09 must be addressed by this court; it makes no sense to discuss whether Lintel’s assistance was reasonable without first deciding if he had a duty to render reasonable assistance. Secondly, there was no evidence to rebut the prima facie case of negligence against Holthaus.
/. Duty to Render Post Collision Assistance
Gertken claims Minn.Stat. § 169.09, subd. 3 (Supp.1983) created a duty which Lintel breached when he failed to walk back to the wreckage and render assistance to Shirley Gertken and Jeanie Holthaus. Gertken claims Lintel’s failure to pull Shirley Gertken out of the ditch was the cause of her death by drowning. The trial court did not allow this theory to go to the jury due to lack of notice. The court also ruled that the statute created no private cause of action and that Lintel had, as a matter of law, rendered reasonable assistance. The trial court’s rationale was erroneous. Al*555though I would affirm the trial court’s decision to exclude evidence regarding this theory, I would do so on different grounds.
First, Gertken properly pleaded negligence and gave sufficient notice of the use of this theory. The complaint alleges Lintel was “negligent in failing to keep a proper lookout, to operate at a speed which was safe for the conditions, to take appropriate action to avoid the collision, and otherwise.” (Emphasis added). This language does not preclude the use of the theory of post-collision negligence. Additionally, Gertken specifically notified respondents over 90 days prior to trial that he would be presenting evidence on the theory of post-collision negligence. Thus, respondents can claim no surprise or prejudice by the presentation of the theory.
A violation of a traffic law is prima facie evidence of negligence. Minn.Stat. § 169.-96 (1982). Although section 169.09 may not “create a private right of action” for failure to render post-accident negligence, a violation of statute should be allowed into evidence to show negligence. The trial court was incorrect in excluding such evidence.
Finally, it is erroneous to state as a matter of law that Lintel rendered reasonable assistance. He did not even go back to the wrecked vehicle to attempt to render assistance. However, even though he failed to lend assistance, Lintel’s inaction was not a cause of Gertken’s death. The accident happened in the early morning hours and when the motorist went to look at the wrecked vehicle it was still dark. Because that person did not notice Gertken’s body in the nearby water, it would be mere speculation to conclude Lintel would have noticed the body. Therefore, no evidence suggests Lintel’s inaction was a cause of Gertken’s death. I would acknowledge the duty to render post-collision assistance under Minn.Stat. § 169.09, subd. 3, but rule as a matter of law that Lintel’s inaction was not a cause of Gertken’s death.
Although neither party raised the issue on appeal, there was some discussion before the trial court on whether Minnesota’s Good Samaritan Law conflicts with the duty created by Minn.Stat. § 169.09, subd. 3. The Good Samaritan Law creates a duty for any person at the scene of an emergency to render assistance to anyone who has suffered harm. Minn.Stat. § 604.-05, subd. 1 (Supp.1983). The statute in effect at the time of the accident also provided:
Any person, * * * who without compensation or the expectation of compensation renders emergency care at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages as a result of acts or omissions by that person in rendering the emergency care unless that person acts in a willful and wanton or reckless manner in providing the care.
Minn.Stat. § 604.05, subd. 2.
Where general and specific statutes conflict, “the two shall be construed, if possible, so that effect may be given to both.” Minn.Stat. § 645.26, subd. 1 (1982). While at first blush the Good Samaritan Law and Minn.Stat. § 169.09, subd. 3 may appear to conflict, it is possible to give effect to both statutes. Both create a duty to render assistance to an injured person; section 169.09 imposes the duty only to those involved in the accident which caused the injury while the Good Samaritan Law imposes the duty upon all those who are at the scene of an emergency. Minn.Stat. § 169.96 provides that a violation of section 169.09 is prima facie evidence of negligence and I would affirm this interpretation in this case.
However, subdivision two of the Good Samaritan Law shields from civil liability any person who renders assistance in good faith at the scene of an accident. Minn. Stat. § 604.05, subd. 2. Thus, a person who complies with the duty provided in section 169.09 to render reasonable assistance, will be able to use subdivision two of the Good Samaritan Law to protect themselves from civil liability. This interpretation gives both section 169.09 and the Good Samaritan Law effect.
In the present case, the Good Samaritan Law is inapplicable. Lintel totally failed in *556his duty to render assistance. The shield of the Good Samaritan Law only applies to those who render care at the scene of an emergency. Because the Good Samaritan Law was inapplicable to Lintel, he had the burden of rebutting the prima facie evidence of negligence, as provided in Minn. Stat. § 169.96, against him. As discussed above, I would hold as a matter of law that Lintel’s negligence was not a cause of Gertken’s death.
II. No Evidence Rebutting the Prima Facie Case of Negligence
I also disagree with the majority's decision regarding Holthaus’ negligence. Because it was uncontroverted that the Hol-thaus vehicle crossed the center line in violation of statute, there was a prima facie case of negligence against Holthaus. See Minn.Stat. §§ 169.14 and 169.96. Holthaus had the duty to rebut the prima facie case by establishing by credible evidence some reason why her car crossed the center line. See Mikes v. Baumgartner, 277 Minn. 423, 152 N.W.2d 732 (1967). Where there is a failure of such evidence, the violation is negligence as a matter of law. Riley v. Lake, 295 Minn. 43, 53, 203 N.W.2d 331, 338 (1972).
The law of the case as instructed by the trial court on the duties imposed by the Minnesota Highway Traffic Regulation Act are as follows:
A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
Now then, in all civil actions a violation of any of the provisions of the traffic laws by either or any of the parties to such action or actions shall not be negligence per se but shall be prima facie evidence of negligence only. Prima facie evidence of negligence means evidence of negligence which is sufficient to establish the negligence if the violation is not excused or justified.
In other words, if any of the foregoing statutes was violated, the violation is negligence unless you should find evidence tending to show reasonable excuse or justification or evidence from which a reasonable person under the circumstances then existing could reasonably believe that such violation would not reasonably endanger any person entitled to the protection of the statute. (Emphasis added.)
Post trial, the trial court ruled the jury could have found the dangerous road conditions caused the vehicle to cross the center line without any negligence on Holthaus’ part, thus rebutting the presumption. However, there is no evidence to support the trial court’s theory. There were no unforeseen weather conditions. The snow had been falling heavily for some time pri- or to the accident. These conditions were steady and consistent, unlike hitting a sudden patch of ice. The fact that snow and slush were on the roadway cannot automatically exonerate a driver from a violation of the law. Such conditions are often present on Minnesota roads.
In any event, a driver has the duty to drive according to conditions. There were several vehicles traveling on the same side of the road as Holthaus, some ahead and some behind her. These vehicles were driving under the same conditions and none of them crossed the center line. The jury’s finding that Jeanie Holthaus was not negligent was against the weight of the evidence. There was simply no evidence to rebut the prima facie case of negligence against Holthaus and thus Holthaus was negligent as a matter of law. Riley, 295 Minn, at 53, 203 N.W.2d at 338. I would reverse the trial court and remand the case with instructions to enter judgment in favor of Gertken and against Holthaus in the amount of $200,000.