¶1(dissenting). The facts are stated in Mr. Justice Kavanagh’s opinion. Defendant admitted violation of section 634 of the Michigan vehicle code, PA 1949, No 300 (CLS 1956, § 257.634, Stat Ann 1952 Rev § 9.2334) by having driven his vehicle on the wrong side of the highway when it collided with the vehicle in which plaintiff was riding. Whether this statutory violation is determinative of defendant’s negligence depends upon the existence or nonexistence of excuse for defendant’s failure to comply with the statute’s requirements. I would reverse and remand this case for retrial because the trial court’s charge did not properly instruct the jury with reference to the nature of the proofs required of defendant in order to excuse his failure to comply with the statute’s requirements.
¶2I do not disagree with Mr. Justice Kavanagh’s timely comments on the trial court’s obligation to correctly instruct the jury as to the law of the case regardless of the requests to charge submitted, or not submitted, by counsel. However, I believe that the charge given in this case does not correctly state the law as it relates to the subject of this defendant’s negligence in the light of the peculiar fact situation presented here.
¶3Justice Kavanagh quotes the trial court’s observation (from the opinion denying plaintiff’s motion for new trial) that no request for directed verdict was made by plaintiff, but the original file does disclose a written request by plaintiff that the trial court instruct the jury that violation of a statutory duty is negligence per se. In any event, the trial court did' instruct the jury that violation of the statute is negligence. Having gone that far in instructing the jury, it is my view that the trial court, even in the absence of a specific request, was obliged to fully and correctly advise the jury on the substantial issue of negligence as presented by the facts of the case and *696by the theories of the parties.' To do so, the jury should have been instructed on the proofs necessary to excuse such statutory violation. Prejudicial error was committed in failing to do so and in adding instructions’ the effect of which was to impose upon plaintiff the standard burden of proving negligence without regard to defendant’s admitted violation of the statute.
¶4After giving the usual general instructions on credibility, burden of proof, preponderance of the evidence, negligence, and proximate cause, the trial court charged the jury as follows:
“Now, as,to the question of negligence. It is the law of this State that if you violate a statute of the State that is negligence. One of the statutes of the State of Michigan requires that you drive on your own right hand side of the road, and if you drive over on the wrong side of the road, except when you are passing, and when it is clear so that you can pass, you are violating a State statute, and you are guilty of negligence, and if that negligence was a proximate cause of the injury, then, of course, the defendant would be guilty of negligence, his negligence would be a proximate cause of the injury, and the plaintiff should recover. The question then will be merely damages.
“There is also a statute of the State of Michigan that provides that the operator of an automobile must drive the same with due caution and circumspection and at a speed and in such a manner as not to endanger or to be likely to endanger any person or property, and to operate his automobile at a careful and prudent speed, not greater than nor less than is reasonable and proper, with due regard to the traffic, the surface and width of the highway upon which he is travelling, and the atmospheric and other conditions then existing. A violation of that State statute is negligence, and if it was a proximate cause of the injury then the plaintiff would be entitled to *697recover. When the statute says conditions of the highway, that would include the icy, slippery condition, because an ordinary prudent person would travel faster on a good, dry road than he would on ice and a slippery condition. You must drive according to the conditions. You must drive with due caution and circumspection and at a speed and in such a manner as not to endanger or be likely to endanger any person or property, having due re-; gard to all the conditions of the road. … ;
“The only question for your consideration is whether the defendant was negligent, and whether' that negligence was a proximate cause of the accident.
“If you find under the instructions that I have given you that the plaintiff has proven by a preponderance of the evidence that the defendant was guilty of negligence, which was a proximate cause of the accident, then you will go to the question of damages.
“If, on the other hand, you find that the defendant was not negligent, then, (of) course, you would bring in a verdict of no cause of action in favor of the defendant. If you find that the plaintiff has failed to prove he was negligent by a preponderance of the evidence, or if you find that he was negligent but that negligence was not a proximate cause of the accident, then you also would bring in a verdict of no cause of action.”
¶5Instructions were then given with respect to the question of damages, whereupon the court explained the theories of the parties in the following language:
“It is the plaintiff’s theory in this case that the defendant was travelling at a rate of speed that was improper due to the icy condition of the road, and that when he made his turn at such a speed he lost control of his car and it went off the side into a rut, and that when he pulled out of the rut his car went over on the wrong side of the road and slid down into the car in which the plaintiff was a passenger.
*698“It is the defendant’s claim that he was not exceeding the speed limit; that he was driving 35 miles an hour. The jury will have to determine under all the conditions whether that was a speed at which a prudent man would be driving around a curve. The defendant says he went off the road onto the shoulder and into a rut. The jury will have to determine whether a prudent man goes off the shoulder into ruts when driving on a highway. He says he pulled off and out of the rut, lost control, and went over on the wrong side of the road. That is his claim.
“I have explained the plaintiff’s claim. It is up to the jury to determine under all of the circumstances under the instructions I have given you, whether or not the defendant was negligent, and whether that has been proven by a preponderance of the evidence, and whether his negligence was a proximate cause of the accident, whether that has been proven by a preponderance of the evidence.”
¶6The quoted language includes all that appears in the charge relating specifically to the issue of defendant’s negligence or the absence thereof.
¶7Defendant admitted that his vehicle was on the wrong side of the highway when it collided with the vehicle in which plaintiff was riding. Section 634 of the Michigan vehicle code, PA 1949, No 300 (CLS 1956, § 257.634 [Stat Ann 1952 Rev § 9.2334]), requires vehicles to be driven upon the right half of the roadway except in certain circumstances not pertinent here. As suggested by Mr. Justice Kavanagh, it is still
¶8I cannot agree, as suggested by Justice Kavanagh, that plaintiff, in addition to proving defendant’s violation of the statute, must also prove that defendant violated it intentionally or that defendant’s violation of the statute resulted from his driving at an unreasonable speed considering the condition of the highway. Determination of defendant’s negligence in the ease at bar turns upon the sufficiency of his proof of excuse for his violation of the statute. Upon failure to prove excuse, defendant would be guilty of negligence as a matter of law, without the necessity for any additional proof by plaintiff of negligence.
¶9In view of what has been said, some value may be found in an analysis of the instructions. As it was given, except for the passing reference to statutory violation constituting negligence, the court’s *700charge followed the classic pattern used in the automobile negligence case where there is present no proof of negligence by admission (as there was here) of a statutory violation. The court’s charge advised the jury that plaintiff had to prove 'defendant’s negligence by a preponderance of the evidence relating to defendant’s speed, weather conditions and the physical condition of the road and its shoulder. The jury should have been advised that defendant was guilty of negligence as a matter of law by virtue of his admitted violation of the statute unless he proved that he was excused from his failure to obey the statute by events or circumstances beyond his control, and the events and circumstances legally sufficient to constitute excuse should have been described by the court. Further, the jury should have been instructed that plaintiff would bear the standard burden of proof of negligence only in the event that the jury found excuse or justification for defendant’s violation of the statute. By its failure to include such instruction, the court’s charge did not correctly state the law applicable to this case.
¶10The importance of the distinction between the charge given and the charge which should have been given is well illustrated by the case at bar. A general verdict having been rendered, who can tell whether plaintiff was denied recovery, for example, because he failed to meet the charge’s requirement that he prove by a preponderance of the evidence (in addition to defendant’s admitted violation of the statute) that defendant’s speed was unreasonable, or whether he was denied recovery because the jury failed to find a causal connection between defendant’s negligence and the collision? I would reverse and remand for new trial, with costs to plaintiff.
¶11 Prosser, Torts (2d ed), § 34, discusses the divergent effect courts have given to such statutory violations in this country. In our own State we have been less than consistent. In Annis v. Britton, 232 Mich 291, this Court hold violation of a State housing law was negligence per se; in Hanna v. McClave, 271 Mich 133, a wrong side of the road case, this Court held violation of the statute created a “presumption of negligence”, citing Noonan v. Volek, 246 Mich 377, *699and said that the presumption exists only in the absence of evidence; but Noonan, relied upon in Manna, involved a violation of the predecessor to present CLS 1956, § 257.402 (Stat Ann 1952 Rev and Stat Ann 1959 Gum Supp § 9.2102) in which the legislature (and not the Court) decreed, whether constitutionally or not is not necessary to decision herein, that the driver of a motor vehicle striking another motor vehicle from the rear “shall be decreed prima facie guilty of negligence.” Finally, in Warwick v. Blackney, 272 Mich 231, another wrong side of the road case, both Noonan, supra,and Hanna, supra,were eited in the opinion, whieh likewise held that proof of violation of the statute makes out only a prima facie ease of negligence but that “this presumption (emphasis added) may be rebutted” and exists only in the absence of evidence. Presently, however, we are baek to our original Annisposture where statutory violations constitute negligence per se. See Cookson v. Mumphrey, 355 Mich 296.
¶12Still other courts consider such statutory violations only as evidence of negligence. See Prosser, supra, and eases eited at p 161 thereof. Why it should be anything more than evidence of breach of a standard of care legislatively established is not clear, but the mechanical judicial conclusions of negligence are yet (but hopefully not for long) required by our recent precedents. For an illuminating discussion of this subject, see Justice Smith's opinion in Richardson v. Grezeszak, 358 Mich 206, 233.