OPINION
SHARPE, Justice.This appeal is from a judgment rendered after jury trial that appellees recover from appellants the aggregate sum of $73,930.45. Appellants are Structural Metals, Inc., and Joe Polanco, defendants below. Appellees are Mrs. Ida LeBourveau, joined by her husband Warren N. LeBourveau, and Grover Impson, individually, and Independent Executor of the Estate of Ivah Impson, deceased, plaintiffs below.
The causes of action asserted by appel-lees arose out of a collision near Tynan, Texas on November 1, 1968, about 8 o’clock P.M., between a truck being driven by Joe Polanco belonging to Structural Metals, Inc., and a car being driven by one J. T. Hall in which Mr. and Mrs. Grover Impson and their daughter, Mrs. Ida Frances Le-Bourveau, were riding as passengers in the rear seat. Shortly prior to the collision both vehicles were traveling in the same direction, generally northeastward, on State Highway 359. Just outside the town of Tynan, Polanco was driving the Structural Metals Truck on its left hand side of the highway and was overtaking and attempting to pass the car driven by Hall, when the car turned to the left in front of the truck toward Farm Road 796 which ran generally in a northwesterly direction and made a “T” intersection with Highway 359 near the point of the collision. Mrs. Impson was killed and Mr. Impson and Mrs. LeBour-veau suffered serious injuries as a result of the accident. Hall is not a party to this suit.
*263The trial court submitted 10 special issues to the jury. Issues 1 through 6 submitted three separate theories of liability relied on by appellees. Issues 1 and 2 inquired whether Joe Polanco drove his vehicle on the left side of the roadway when approaching within 100 feet of the intersection in question and whether such action was a proximate cause of the occurrence in question. Both of these issues were answered favorably to appellees. The jury refused to find in answer to issue 3 that Polanco failed to keep a proper lookout, and issue number 4 involving proximate cause was conditionally submitted and not answered. The jury further refused to find in answer to issue 5 that Polanco failed to give proper warning of his intention to pass the Hall vehicle, and issue 6 involving proximate cause was conditionally submitted and not answered. It thus appears that the jury answers to issues 1 and 2 furnish the only possible basis for liability of appellants to appellees. Issues 7-10 related to damages.
Appellants assert eleven points of err- or. We will not need to specifically discuss most of them because we have concluded that this appeal depends primarily upon disposition of appellants’ point of err- or number one which reads as follows:
“The trial court erred in failing to submit an issue to the jury inquiring whether Joe P. Polanco’s driving on the left side of the roadway, when approaching within one hundred feet of the intersection was negligence, since there was evidence of justification or excuse for the statutory violation.”
Appellees have replied to appellants’ first point by their first and second counterpoints in substance as follows: (1) That the trial court correctly refused to submit an issue on excused statutory violation where such an issue was not specifically pleaded, but raised only by a general denial, and was not tried by consent of the parties, and (2) defendants presented no evidence of excused statutory violation.
We agree with appellants.
We first consider whether there was evidence legally sufficient to raise the issue of excused statutory violation. If there was none, then the question of pleading becomes immaterial. The evidence relating to the issue of excuse or justification for the statutory violation was in substance as follows. Mr. Polanco, Mrs. LeBourveau and Mr. Impson were the only three potential witnesses to the accident. The latter two, who were riding in the rear seat of the Hall car, did not know much about how it actually happened. The testimony of Joe Polanco, Jr., was in substance as follows: He was the driver of a truck belonging to Structural Metals, Inc., on November 1, 1968, when it was in a collision with an automobile being operated by Mr. J. T. Hall. Earlier the same day Polanco had passed through Tynan, on the way to Jim Hogg County. He had been on Highway 359 through Tynan some five or six times in three or four years. He had previously seen the intersection of Farm Road 796 with Highway 359 but shortly before the accident did not recall its exact location with respect to how far it was out of the town of Tynan. Polanco was traveling about 50 to 55 miles per hour as he came into Tynan. It was dark and the truck lights were on. In Tynan, some six'to seven hundred feet ahead of him, the Hall car drove on to the extreme right-hand side of Highway 359 from an intersecting street. At that point in Tynan, Highway 359 was a four-lane road. Mr. Hall drove his car some 30 to 40 miles per hour in the right-hand lane, while Mr. Polanco drove some 35 to 45 miles per hour in the inside lane. When Mr. Polanco reached the point where the solid yellow, no-passing stripe terminated, he honked his horn, put on his turn signal and pulled to the left to pass Mr. Hall’s automobile. At this point, the four lanes had narrowed to two lanes, but there were improved shoulders on each side of the main highway. Mr. Polanco had increased speed to pass Mr. Hall’s vehicle, and was traveling at about 50 miles per *264hour when Mr. Hall also started picking up speed. Mr. Polanco testified that when he pulled out to pass Mr. Hall, he could have completed passing him before reaching the intersection had Mr. Hall not started gaining speed. Mr. Hall continued his vehicle well on the right-hand side of the roadway, at least partially on the shoulder. Mr. Polanco could have passed the Hall vehicle more than 100 feet before the intersection was reached if the Hall vehicle had not speeded up after he commenced passing. When Mr. Polanco had his truck in the left lane, and was some 10 to 20 feet to the rear of the Hall vehicle, it abruptly turned left. No brake lights and no turn signals appeared on the Hall automobile. Mr. Po-lanco did not realize that the farm road intersection was immediately ahead until he was already less than 100 feet from it. At that time, he was preparing to pass the Hall vehicle; and when it commenced its left turn, Mr. Polanco saw the sign pointing to Farm Road 796 which made a “T” intersection with Highway 359 at that point. Photographs in evidence reflect that the no-passing zone had ended, and that Mr. Polanco was not in a “no-passing” zone at the time of the accident. There was no precise warning of where Farm Road 796 intersected Highway 359 except right at the intersection. Up until the moment When the Hall vehicle started its turn to the left, from its position on the extreme right-hand portion of Highway 359, without signal, Mr. Polanco had no way of realizing that Farm Road 796 went off to the left from Highway 359 at that particular point.
Defendants called B. R. Manning, Jr., as a witness. He testified that he was one of three men who were first to arrive at the scene of the accident. Headlights from both vehicles were on. In addition, the left turn signal on the truck was still working, but there was no turn signal showing on the car. The truck’s headlights were on low beam.
The plaintiffs called Mr. John Bentley as an accident reconstruction witness. He prepared plaintiffs’ exhibit 1, which was a diagram of the scene of the accident. Mr. Bentley computed that the truck was going 53.2 miles per hour when its brakes were applied. He had found that the car was going 21 miles per hour at collision point, and he chose a perfect arc to project back the car from point of collision to a position traveling down Highway 359. Mr. Bentley said on cross-examination that he had chosen the radius of turn for the car by starting from a position exactly in the right-hand lane of Highway 359, and not from the shoulder. He further assumed there was a constant turn with no change in the wheel from the moment the turn started. Mr. Bentley testified to what was shown by photographs, i. e., that the intersection of Farm Road 796 with Highway 359, from the direction Joe Polanco was approaching, was hidden by a house and trees in the front yard of that house. Mr. Bentley also testified that from the time Joe Polanco started reacting to the automobile’s movement, there was less than two seconds until impact.
We agree with appellants that there was some evidence to raise the issue of excuse or justification in connection with Joe Polanco operating the Structural Metals truck on the left hand side of the highway under the conditions shown to exist on the occasion in question.
We next consider the question of whether the trial court correctly refused to submit an issue inquiring whether Joe Polanco’s driving on the left side of the highway when approaching within 100 feet of an intersection was negligence, when the defendants filed only a general denial and did not specifically plead excused statutory violation.
In support of the contentions made by appellants under their point one they rely primarily on the cases of Phoenix Refining Co., Inc. v. Powell, 251 S.W.2d 892 (Tex.Civ.App., San Antonio, 1952, wr. ref. n. r. e.), and Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex.Sup.1966). Appellants *265say that the law was correctly proclaimed in Phoenix and confirmed and restated in Hammer.
In Phoenix v. Powell, supra, both Phoenix, as plaintiff, and Powell, as cross-plaintiff, sought to recover for damages to their respective vehicles. The trial court rendered judgment that neither party recover. Only Phoenix appealed, contending that the jury findings for Powell upon which the judgment was based were supported by mere surmise and conjecture and that consequently the judgment could not stand. Only “no evidence” points were raised. More specifically, Phoenix contended that it was entitled to judgment upon the jury findings that the driver of the Powell truck had driven his vehicle upon his left hand side of the highway, which was a violation of the Penal Code and hence negligence per se, and that such action was a proximate cause of the damages resulting from the collision. In Phoenix the jury found among other things in substance that (1) the driver of the Powell truck drove it to his left hand side of the highway as he approached the point of the accident in question, and (1-a) refused to find that such act was negligence, and (3) that such act (inquired about in question No. 1) was a proximate cause of the accident. The court recognized that “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.” However, the Court went on to hold that “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 man standard of negligence should be submitted.”
The Court summarized the rules as follows :
“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.”
The Court in Phoenix ultimately held that the evidence was sufficient to raise the issue of excusable violation of the statute prohibiting the driving of a motor vehicle on the left hand side of the road, and the issue being raised the jury findings that appellant Phoenix had not met the burden of persuasion properly placed on it by Issues 1-a (negligence) and 28 (unavoidable accident) must stand, and such holdings were fatal to the appeal. The court further stated that because appellant Phoenix, as plaintiff, failed to secure findings upon issues which were necessary to fix liability against the appellee Powell, defendant, that discussion of the issues concerning “emergency” was not necessary. The judgment was affirmed.
In Hammer v. Dallas Transit Company, 400 S.W.2d 885 (Tex.Sup., 1966) the jury found that the traveling of defendant’s bus on the wrong side of the road was negligence. It appeared that the bus was out *266of control when it crossed the center line, and defendant insisted that this excused the vehicle’s presence on the wrong side of the road unless plaintiff established some specific act or omission that caused loss of control. The Supreme Court rejected that contention and held in part as follows:
“An analogous situation is found in instances in which one relies upon and proves the fact that his adversary violated a statutory standard. The one charged with such a violation may then go forward with the evidence and show excuse or justification for the violation. See Calvert, Special Issues Under Article 670Id, § 86(d), 34 Tex.L.Rev. 971, 977. But it is the one seeking to justify or excuse the violation who has the burden of going forward with the evidence. Younger Bros. v. Marino, 198 S.W.2d 109, 113 (Tex.Civ.App.1946, writ ref. n. r. e.); Jessee Produce Co. v. Ewing, 213 S.W.2d 750 (Tex.Civ.App.1948, no writ); Note, 27 Tex.L.Rev. 866. When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the common-law standard. Cunningham v. Suggs, 340 S.W.2d 369, 374 (Tex.Civ.App.1960, writ ref. n. r. e.); Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App. 1952, writ ref. n. r. e.); Fisher v. Leach, 221 S.W.2d 384, 390 (Tex.Civ.App.1949, writ ref. n. r. e.); Taber v. Smith, 26 S.W.2d 722 (Tex.Civ.App.1930, no writ) ; Hodges, Special Issues Submission in Texas, § 25 (1959). The burden of persuasion on the whole case remains on the one relying upon the statutory violation. See Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954).”
The Supreme Court in Hammer held that the Court of Civil Appeals had applied the wrong rule of law with respect to the one who had the burden to go forward with the evidence to excuse or show the reasons that the defendant’s bus was out of control, and the case was remanded to the Court of Civil Appeals for consideration of certain points of Dallas Transit Company (which had been sustained by the intermediate Court without discussion) which asserted that the jury findings were against the great weight of the evidence.
In the recent case of Christy v. Blades, 448 S.W.2d 107 (Tex.Sup.1969) the court was particularly concerned with Art. 6701d, Sec. 86(d), Vernon’s Ann.Civ.St, and the plaintiffs’ contention that the railroad, if it wished to rely upon the statutory violation as a defense under the circumstances (where the plaintiff’s vehicle failed to stop within the statutory stopping distance and there was evidence to support plaintiffs’ contention that it was impossible to stop after the train became plainly visible, but impossibility of compliance was not established as a matter of law), had the burden of obtaining a finding that the failure to stop was negligence under the common law standard. The decision is not directly in point but the opinion is helpful to our disposition of the questions presented here. The Court, among other things, held in substance that where a violation of Art. 6701d, Sec. 86(d) was shown (by the establishment of the appropriate facts, either proved conclusively or by way of findings, creating a duty on the part of the motorist to stop, and that he failed to stop or having stopped, proceeded before he could do so safely), the motorist is guilty of negligence as a matter of law in the absence of circumstances amounting to legal justification or excuse; but the holdings just mentioned were prefaced by a holding that “It is also our opinion that when impossibility of compliance is raised but not conclusively shown by the evidence, the motorist must request the submission of proper excuse issues before he will be heard to complain of their omission from the charge.” The court made it abundantly clear that its holdings were specifically in connection with Art. 6701d, Sec. 86(d), V.A.C.S., and that the rules in other situations and under different statutes might not be the same. In particular, the court in Christy discussed Hammer and specifically reiterated (with citation of authorities *267omitted) the rules which we have herein-above quoted from Hammer, following' which the court said:
“The adverse party will need a finding of common-law negligence, of course, if a legal excuse for the violation is established by the evidence as a matter of law or by a finding of fact. There are also cases in which the existence of excuse vel non can fairly be made to turn on the jury’s conclusion as to whether the actor was negligent by the reasonably prudent man standard. This is so, for example, where the statutory requirements are generally known and accepted as the minimum standard of care and the nature of the claimed excuse is such that a technical violation will not constitute negligence if a person of ordinary prudence would have violated the statute under the same or similar circumstances. Whatever the rule may be in other situations and under different statutes, however, it is our opinion that when a violation of Article 6701d, § 86(d), has been established by findings similar to those quoted above, impossibility of compliance is not properly submitted by requiring the jury to determine whether the motorist exercised ordinary care. It is true, as pointed out by plaintiffs, that the ultimate issue of negligence, defined in terms of the common-law standard, encompasses the existence or nonexistence of excuse. If the jury finds that the motorist was negligent in failing to stop, this would necessarily include a determination either that it was not impossible for him to do so or that his inability to stop was due to his own negligence. But the converse of this statement is not true, because the jury would be free to find that the motorist was not negligent if it concluded for any reason that a person of ordinary prudence similarly situated would not have stopped.” (Emphasis supplied except for the words “for any reason”).
Appellees, in support of their position that a general denial was not sufficient to raise an issue of excused statutory violation and that such issue was required to be pleaded, rely primarily on the case of Rash v. Ross, 371 S.W.2d 109 (Tex.Civ.App., San Antonio, 1963, wr. ref. n. r. e.). Appellees specifically contend that excusable or justifiable violation of a penal statute is an inferential rebuttal issue and that issues which relate to defenses by way of rebuttal are affirmative issues within Rule 279, Texas Rules of Civil Procedure, and that (quoting from that rule in part) “ * * * a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part.”
The opinion in Rash v. Ross must be carefully analyzed. Three groups of plaintiffs were there involved and their claims were discussed under section headings of (1) Ritchie Judgment, (2) Guyer Judgment, and (3) Ludeke Judgment. The last-mentioned section has no materiality here. Appellees’ reliance here is primarily on the “Guyer Judgment” section of the opinion. The suit arose out of a head-on collision between a vehicle driven by Henry Gorman Ritchie, Sr., and another vehicle driven by Ronald C. Guyer, in which Jean Raymond Ludeke was a passenger. Ritchie and Ludeke were killed and Guyer was injured. Guyer, Ritchie’s widow and children, and Ludeke’s executor and guardian of his children, all sued the defendants who were contractors for construction of the highway in which area the accident occurred. Primary liability of the defendants was established by jury findings. The trial court awarded all of the plaintiffs a recovery but in doing so disregarded certain jury findings concerning both Guyer and Ritchie, which will be more fully discussed hereinafter. The Court of Civil Appeals held that such findings were improperly disregarded as to Guyer but correctly disregarded as to the Ritchies. Judgment in favor of Guyer was reversed and rendered and that in favor of the Ritchies was affirmed.
*268We will now specifically consider the “Guyer Judgment” section of the opinion in Rash v. Ross. The jury found that Guyer was contributorily negligent in that (1) he drove his vehicle to the left of the center of the traveled portion of the highway, and, (2) this was a proximate cause of the collision. The Court of Civil Appeals held that these findings should not have been disregarded and they defeated Guyer’s recovery. The Court pointed out that Guyer had not pleaded, proved or requested an excuse issue and that not until he filed his motion for judgment notwithstanding the verdict did he ever rely upon excuse as a justification for his violation of the statutory standard of care. We believe that the most material holding as to Guyer is found in the following statement of the court.
"Guyer did not prove' excuse. His theory of facing the charge that he was contributorily negligent was by way of a strict denial. In the course of the trial he did not seek to excuse his being on the wrong side of the road; he steadfastly denied that he was anywhere except on the right side. He denied the violation, and stood upon his denial.”
We now specifically consider the “Rit-chie Judgment” section of the opinion in Rash v. Ross, reading as follows:
“Defendants pleaded that Ritchie was contributorily negligent as a matter of law, in that he violated the statutory standards of §§ 52 and 53, Art. 6701d, Vernon’s Ann.Civ.Stats., which required Ritchie to drive on his right side of the road. Lewis v. Reichel, Tex.Civ.App., 256 S.W.2d 216. Ordinarily, negligence per se is submitted in two issues, one that inquires about the conduct claimed to be violative of the statute, and the other about proximate cause. When it is claimed, as Ritchies do, that the statutory violation was excused and excuse is properly raised, statutory negligence is dissolved, and the common law negligence issue is submitted. The court submitted the issues about Ritchie’s contributory negligence in that manner. The jury found, supported by the evidence, that Ritchie drove his vehicle to the left of the center of the traveled portion of the highway immediately before the collision, but that this was not negligence. Although the proximate cause issue was conditionally submitted, the jury answered the issue and found that the act was a proximate cause of the collision.
Defendants contend that the answer which convicted Ritchie of violating the statutory standard, together with the proximate cause answer, established negligence per se. This argument disregards the fact that Ritchies established their excuse for being on the wrong side of the road. Violations of the traffic law, such as driving on the left side of the road in violation of a statute may, in particular circumstances, be excused. Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d 792; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 438; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, 725; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Hodges, Special Issue Submission in Texas, 67.
The evidence in support of excuse justified the submission of the common law negligence issue instead of submitting the case as one of statutory negligence. Ritchie was across the center line, but he was following the road on which the pavement had been scraped away. As he proceeded south, he came upon an unlighted area at a point where there was new pavement. The new pavement angled across the old pavement toward the northwest. The confusing result at night was that at the junction of the scraped road with the new pavement, one could hardly tell where one’s side of the road was. A highway patrolman described a shallow ditch which had been built across the road. As one crossed it, *269he said that the ditch would pitch a vehicle to the left. There was no center stripe. The evidence supports the submission and finding of Ritchie’s justification in being across the center line. The jury in answering, unnecessarily, the proximate cause issue in the affirmative, did nothing more than find that Ritchie’s faultless act in driving across the center line caused the accident. The trial court properly gave judgment on the verdict for the Ritchies.”
It appears that the holdings of Rash v. Ross in the “Ritchie Judgment” section of the opinion are more in point here than are those contained in the “Guyer Judgment” section thereof. In the instant case Polan-co conceded that he was driving the Structural Metals Truck on the left hand side of the highway, but the evidence raised the issue of excuse for his doing so, particularly that which tended to show he did not know and could not readily ascertain the location of the intersection in question under the existing nighttime conditions and because of the conduct of Hall in increasing the speed of his car so that Polan-co was at least temporarily required to continue operating his truck on the left hand side of the highway. Appellants here expressly objected to the charge of the court because it failed to submit a separate issue of negligence in connection with Special Issues 1 (which would relate at best only to negligence per se) and 2, inquiring as to proximate cause. In addition, appellants separately submitted and requested a special issue concerning negligence. Appellants’ requested issue was refused by the court and their objections to its omission in the charge were overruled. These facts distinguish the instant case from the Guyer portion of Rash v. Ross.
In Hodges, Special Issue Submission in Texas, Section 25, the subject of excused statutory violations under the general subject of inferential-rebuttal issues is discussed in part as follows:
“Ordinarily violation of a penal statute or ordinance constitutes negligence as a matter of law, but particular circumstances may amount to an excuse and deprive the otherwise prohibited conduct of that effect.107 Some penal statutes and ordinances themselves provide an exception or excuse.108 Thus driving on the left side of the highway may be justified and hence not negligent as a matter of law if the driver turned to the left because collision seemed imminent,109 or because of the blowout of a tire.110 In the same way, driving at a speed in excess of the speed limit might be justified because the driver was a police officer in pursuit of his duties;111 parking on the highway might be justified because of the lack of space on the right of way;112 failure to put out flares to mark a vehicle parked on the highway might be justified by lack of time prior to the collision.113 Evidence of circumstances excusing the violation, while precluding a finding of negligence as a matter of law, does not preclude the possibility that the conduct may nevertheless constitute common-law negligence. Thus an issue may be submitted asking if the conduct complained of was negligence.11* It has been held that this is a sufficient submission of the theory that violation of a penal statute was excused by special circumstances.115 Such an issue, however, does not submit the rebuttal theory specifically so as to call the jury’s attention to it. Furthermore, such an issue submits the rebuttal theory only from the standpoint of the party contending that negligence existed and not by way of inferential rebuttal thereof in behalf of the party claiming the excuse.’’ (emphasis supplied)
The subject of pleading and proof in connection with inferential rebuttal issues is discussed by Professor Hodges in Section 17 of his cited work in part as follows:
“Before 1941 the general denial of the defendant or the automatic denial by the plaintiff of the defendant’s answer was sufficient pleading to require the submission of an inferential-rebuttal issue *270raised by the evidence.33 This followed logically since the fact submitted by the inferential-rebuttal issue denies or rebuts some element of an opponent's cause of action or defense and hence is put in issue by a denial in pleading. But the general denial gave little notice of inferential-rebuttal theories, and without specific pleading as a guide the court’s problem in preparation of the charge was made more difficult. For that reason it was provided by Rule 279 that a party was not entitled to the affirmative submission of an issue raised only by a general denial.34 This change did not convert the nature of the defensive matter and make of it an affirmative defense, although occasional cases have so referred to it.33 The burden of proof was not affected by the new Rule; it remains as stated above.
“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 op-ponenfs issues submitting the elements of his cause of action or defense.36 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.37 ” (Emphasis supplied)
In this case appellees pleaded negligence in seven particulars. Two of the pleaded grounds alleged violations of Section 57, Art. 6701d, V.A.C.S., but one of them (concerning a no-passing zone) was not supported by evidence and was not submitted. The other pleaded ground (Polanco’s driving on the left side of the roadway when approaching within 100 feet of the intersection in question) was submitted in special issue No. 1. Appellees alleged that “Joe Polanco was guilty of negligence” as to all of the seven pleaded grounds, and that “Each and all of the above and foregoing acts and omissions which constitute negligence were the proximate cause or causes of the collision in question and of plaintiffs’ damages as hereinafter set forth.” There was no allegation that appellants should be held liable solely upon grounds that their violation of a statute was a proximate cause of the collision. The effect of appellants’ general denial was to contest and deny that any one of the seven grounds relied on by appellees was negligence.
Appellants’ position in the trial court and here is not that the issue of negligence should have been submitted as an affirmative defense, but rather is that such issue was required to be submitted (in view of the evidence) as a part of the appellees’ case. We agree. We believe that appellants’ position is supported by the decisions in Phoenix and Hammer, by the discussion in Christy, and by the discussion in Hodges’ work on special issues and the authorities therein cited in support of the text statement. Our holding — that the trial court erred in failing to submit an issue to the jury inquiring whether Polanco’s driving on the left side of the roadway within 100 feet of the intersection was negligence, since there was evidence of justification or excuse for the statutory violation — is also supported by a number of cases following Hammer, some of which are: Reu-ter v. Gilbreath, 401 S.W.2d 658 (Tex.Civ. App., Beaumont, 1966, wr. ref. n. r. e.); Black v. Boyd, 410 S.W.2d 6 (Tex.Civ.App., Houston 1st, 1967, wr. ref. n. r. e.); Holland v. Collins, 457 S.W.2d 177 (Tex.Civ. App., Amarillo, 1970, wr. ref. n. r. e.); Sears, Roebuck Company v. Stiles, 457 S. W.2d 580 (Tex.Civ.App., Waco, 1970, wr. *271ref. n. r. e.). We have examined the original transcripts in Phoenix Refining Co. v. Powell, supra, Rash v. Ross, supra, and Hammer v. Dallas Transit Co., supra, and do not find any specific pleadings in any of them asserting that the statutory violations therein involved were excused or justified.
Appellants’ point one is sustained.
Under appellants’ point two it is argued in substance that because of the failure of the trial court to submit a separate issue of negligence concerning Polanco’s driving on the left side of the roadway when approaching within 100 feet of the intersection in question, that error is presented requiring reversal and rendition of the judgment in favor of appellants. We agree that the judgment must be reversed but have concluded that the cause should be remanded for new trial. Rule 434, T.R.C.P. It is apparent that the case was tried on the wrong theory, that it is necessary that some matter of fact be ascertained (particularly whether Polanco was negligent on the occasion in question under the reasonably prudent man standard), and that the justice of the case demands another trial. See Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.Sup.1970); Texas Sling Company v. Emanuel, 431 S.W.2d 538 (Tex.Sup.1968); Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959); Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954); Montgomery Ward & Co. v. Randio, 419 S.W.2d 407 (Tex.Civ.App., Beaumont, 1967, wr. ref. n. r. e.).
The judgment of the trial court is reversed and the cause is remanded for new trial.