(concurring).
I concur with the result reached by Justice Davis in his opinion, but for different reasons.
This is a controlled intersection case and it is the first case construing Section 71(a) of Article 6701d as amended by the 61st Legislature of Texas.
The crucial issue in this case is the construction to be given Section 71(a) of Article 6701d, Texas Revised Civil Statutes (1925), as amended by acts of the 61st Legislature, effective September 1, 1969. The pertinent part of Article 6701d is as follows:
“Vehicles approaching or entering intersection.
Sec. 71(a) The driver of a vehicle approaching the intersection of a different street or roadway shall stop, yield and grant the privilege of immediate use of such intersection in obedience to any stop sign, yield right-of-way sign or traffic control device erected by public authority, and after so stopping, may only proceed thereafter when such driver may safely enter the intersection without interference or collision with traffic using such different street or roadway.”
An examination of 1 Texas Pattern Jury Charges, 161, Sec. 6.01, indicates that the committee that drafted the special issues to be submitted in conjunction with Sec. 71(a) of Article 6701d expressed no opinion on whether Sec. 71(a) establishes a standard of conduct, the violation of which would be negligence per se, or whether the amended statute establishes a standard of care.
It is my conclusion that Sec. 71(a) of Article 6701d establishes both a standard of conduct and a standard of care at an intersection at which all entrances to the intersection are controlled by stop signs or red flashing signals, such as the facts are shown to be in the present case. The standard of conduct is that all persons must stop when reaching the intersection. The failure to stop is a breach of a statutory duty, the violation of which constitutes negligence per se.
That portion of Sec. 71(a) which states: “ . . . and after so stopping, may only proceed thereafter when such driver may safely enter the intersection without interference or collision with traffic using such different street or roadway,” constitutes a standard of care, the violation of which does not constitute negligence per se. That portion of the statute lays down a rule of care which in its very nature is relative to, and dependent upon, the factors making for danger. It does not require the driver of a vehicle, once he has stopped, to await the passage of every car which may be approaching from his right or his left, irrespective of its distance from the intersection, its speed, and the probable conduct of the driver. The statute imposes a standard of care upon the party entering the intersection to view all of the factors affecting safety and to determine if there is a reasonable apprehension of danger of a collision if he *112should proceed to cross the intersection ahead of an oncoming vehicle. In making his observation of the factors making for such danger, and in reaching his conclusion on whether or not he can enter the intersection without interference or collision with traffic using a different street or roadway, he is bound to use the care of an ordinarily prudent man. It is not the exact or mathematical situation, but the apparent situation, obvious to a man of ordinary prudence, reasonably observant, that must control his judgment and determine the right of precedence. In short, the invocation of the statute raises an issue of fact as to whether or not a man of reasonable prudence, after stopping, could thereafter proceed into the intersection without interference or collision with traffic using a different street or roadway. Accordingly, I would apply the objective common law test of the reasonably prudent man and hold that before it can be said in a given case that a motorist, who had first stopped, proceeded into the intersection when it was unsafe to do so, it must appear, as a matter of law from all of the attendant and surrounding circumstances, that a reasonably prudent person so situated and exercising ordinary care for his own safety, would not have done so. Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956).
The trial court in the instant case had before it the question concerning standard of care. The Plaintiff-Appellee Judkins had stopped at the stop sign facing her. Appellant Sheppard failed to stop at the stop sign, thus leaving only the question of the care exercised by Appellee.
Since I would construe Sec. 71(a) of Article 6701d as establishing a standard of care relative to when a motorist may proceed into an intersection after stopping, it is my conclusion that Special Issue No. 16 as submitted to the jury was inquiring about certain facts and the answer to such issue amounted only to an evidentiary finding which would not by itself establish that Appellee Judkins was guilty of negligence per se.
Appellant insists that the answer to Special Issue No. 16 in finding that Appellee Judkins proceeded into the intersection when it was unsafe to do so establishes the element of the offense under Sec. 71(a) which entitles Appellant to a judgment in her favor as a matter of law, unless Appellee Judkins' requests special issues, which if answered in her favor would excuse or justify her actions in proceeding into the intersection when she did. Appellant contends that the jury need not answer an issue inquiring about the common law negligence of Appellee Judkins until the jury has answered issues exonerating or excusing the actions of Appellee Judkins in entering the intersection when the jury had already found that it was unsafe to do so. If the jury should excuse the conduct of Appellee Judkins, then it would be incumbent upon Appellant Sheppard to get a finding that Appellee Jud-kins was guilty of negligence at common law in order for Appellant to prevail and defeat the recovery of Appellee by establishing that Appellee was guilty of contributory negligence. Of course, Appellant would have to obtain a finding that the negligence of Appellee was a proximate cause of the collision in order to finally prevail, unless the proximate cause was established as a matter of law. To support her contentions, the Appellant quotes at page 411 in Christy v. Blades, 448 S.W.2d 107 (Tex.Sup.1969), the following language:
“ * * * To establish a violation of Article 6701d, § 86(d), the railroad is required to prove conclusively or obtain findings that a train was approaching, was plainly visible and in hazardous proximity to the crossing, and that the motorist either failed to stop as required by the statute, or after having stopped, proceeded before he could do so safely. These are the elements of the offense. Once they are established and in the ab*113sence of circumstances amounting to legal justification or excuse, the motorist is guilty of negligence as a matter of law.”
I am persuaded that in the present case, it was not mandatory for Appellee Judkins to request the court to submit an excuse issue because that portion of Section 71 (a) stating that a driver, after stopping, may only proceed thereafter when such driver may safely enter the intersection without interference or collision with traffic using such different street or roadway, ' establishes a standard of care which is tested by the “ordinary prudent man” test. If the last portion of Sec. 71(a) had established a standard of conduct, then it would have been necessary for Appellee Judkins to have requested and received a favorable answer from the jury excusing her actions in entering the intersection when it was unsafe to do so.
Special Issue No. 16 would have been better submitted, in my opinion, if the trial court had informed the jury that the “ordinary prudent man” test was to be applied. However, it was not necessary to submit both Special Issue No. 16 and Special Issue No. 17 in the manner provided for by the trial court. Special Issues No. 16 and 17 could have been combined into one issue with the instruction as set out in 1 Texas Pattern Jury Charges, 161 Sec. 6.01, because it is presumed as a matter of fact, that in this instance Appellee Judkins failed to yield and grant the privilege of immediate use of such intersection as set out in Sec. 71(e) of Article 6701d because she got hit while proceeding through the intersection. Sec. 1 P.J.C. 163, Sec. 6.01, “Failure to Yield.” I do not think that Special Issue No. 16 was so misleading as to confuse the jury, and since the jury exonerated Appellee Judkins of any negligence in Special Issue No. 17, I feel that it is of no consequence that the trial court failed to tell the jury they were to apply the “ordinary prudent man” test. I would recommend that Special Issues No. 16 and 17 be combined into one issue with the appropriate instruction set out in Sec. 6.01, supra.
The trial court was correct in submitting a negligence issue as it did when it submitted Special Issue No. 17, immediately following the standard of care issue (Special Issue No. 16). The trial court was further correct in conditioning the proximate cause issue (Special Issue No. 18) on an affirmative finding to the negligence issue (Special Issue No. 17). Kelley v. Goodrum, 378 S.W.2d 935 (Tex. Civ.App. Houston 1964, no writ); Warren Petroleum Co. v. Thomasson, 268 F. 2d 5 5th Cir. 1959; Booker v. Baker, 306 S.W.2d 767 (Tex.Civ.App. Dallas 1957, wr. ref’d, n. r. e.); Rash v. Ross, 371 S.W. 2d 109 (Tex.Civ.App. San Antonio 1963, wr. ref’d, n. r. e.), as it applies to the “Ritche Judgment;” Hemphill v. Meyers, 469 S.W.2d 327 (Tex.Civ.App. Austin 1971).
In Structural Metals, Inc., v. Impson, 469 S.W.2d 261 (Tex.Civ.App. Corpus Christi 1971), the court concluded that if the statute involved is a “thou shalt not” statute or a statute that establishes a standard of conduct, the violation of which constitutes negligence per se, then once the jury has found that a party has by his actions violated the statute, it becomes incumbent upon that party to obtain favorable findings excusing his conduct in order to avoid losing the case on a negligence per se issue. If this same party obtains a finding excusing his actions in violating the statute, he may still be guilty of negligence at common law if the jury should so find.
It is my construction of the Impson case, supra, that the Court concluded that if the statute that was violated is one that establishes a standard of care, then the special issues should be submitted as follows :
1. An inquiry about the actions of the party accused of violating the statute in terms of the “ordinary prudent man” test.
*1142. The negligence issue (or a combining of issues 1 and 2 into a single negligence issue with the appropriate instruction as outlined in Section 6.-01, P.J.C., as illustrated by Issue No. 1 at page 161).
3. The proximate cause issue conditioned upon an affirmative finding to the preceding negligence issue.
4. The damage issue, conditioned upon an affirmative finding to the preceding proximate cause issue.
See Hemphill v. Meyers, supra, setting out the required issues under a standard of care statute.
If the statute that has been violated is one which establishes a standard of conduct, the violation of which is negligence per se, then the issues should be submitted as follows:
1. An inquiry to determine if the first party acted in such a manner as to be guilty of doing that which the statute prohibits.
2. The proximate cause issue, conditioned on a finding that the statute had been violated in answer to Special Issue No. 1.
3. First party’s excuse issue (if properly raised), conditioned on an affirmative answer to Special Issue No. 2.
4. If Special Issue No. 3 is required to be answered and there is an affirmative finding excusing the actions of first party then the next issue would be one on whether or not first party’s actions constituted common law negligence.
5. If there was an affirmative finding that first party was guilty of common law negligence, then the jury should be asked whether such negligence was a proximate cause of the collision.
See Christy v. Blades, supra; Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex. Sup.1966); Phoenix Refining Co. v. Powell, 251 S.W.2d 892, 896-897 (Tex.Civ.App. San Antonio 1952, wr. ref’d, n. r. e.).
I do not want to imply that I am in agreement with the majority holding in the Impson case, because I am not. I am only in agreement as far as the manner in which the special issues should ,be submitted as I have above outlined. The majority opinion in Impson holds that a violation of Article 6701d, Sec. 57 (driving on the left side of a roadway when approaching within 100 feet of an intersection) is a violation of a standard of care. My construction of Sec. 57 would be that it establishes a standard of conduct.
It is not always easy to determine whether a particular section of Art. 6701d establishes a standard of care or a standard of conduct. I am persuaded that if the statute leaves a person to exercise his judgment such as, he may proceed when it is safe to do so, then the statute establishes a standard of care. However, if the statute provides that all persons shall stop in obedience to the red flashing light facing them at an intersection, it is one that leaves no discretion, nor does it leave an exercise of judgment on the part of the driver, and is therefore a standard of conduct statute.
In the Booker case, supra, the Appellants (Defendants) contended that the trial court erred in rendering judgment non obstante veredicto because the jury had found that the Plaintiff had violated the provisions of Art. 6701d, Sec. 68(a) and Sec. 72, Vernon’s Annotated Civil Statutes, which violations Appellants contended constituted negligence as a matter of law, and were the proximate cause of the collision. The Dallas Court of Civil Appeals disagreed and stated,
“We do not agree with appellants that the jury’s answers to issue A amounted to a finding that Mrs. Baker had violated *115the named statute, or that she was for that reason guilty of negligence per se.
“In our opinion Articles 6701d, sec. 68a and sec. 72, come within the class of statutes in which the common-law standard of the reasonable prudent man must be used in determining as a matter of fact, not as a matter of law, whether the conduct of a motorist is negligent. The duties imposed by these particular statutes are not absolute, they are conditional. They do not dispense with the necessity of a finding of fact as to whether the conduct of a motorist was negligent under the circumstances.
The court further concluded that even though the Plaintiff, Mrs. Baker, was found to have made a left-turn when she could not do so with safety because the car driven by Booker (Defendant) was so close to the intersection as to constitute an immediate hazard, the court held that Mrs. Baker (Plaintiff) was exonerated when the jury found that her conduct did not constitute negligence.
In the instant case, the jury found that Appellee Judkins had entered the intersection when it was unsafe to do so, but exonerated her of negligence by its answer to Special Issue No. 17 (the negligence issue). It is therefore my conclusion that no differences exist between the holding in the Booker case and the determination of the present case. Thus I would hold that an affirmative answer to Special Issue No. 16 was not a finding of negligence per se, nor the violation of a standard of conduct, but on the contrary was a determination of fact that did not amount to anything but a violation of a standard of care. Even though the jury found that Appellee had violated a standard of care, it failed to find such conduct to be negligence.
For the foregoing reasons, I believe that the judgment of the trial court should be affirmed.