BALDOCK, District Judge,
concurring and dissenting:
I agree with the majority’s decision on the second issue concerning the admissibility of reconstruction photos. I disagree with the majority’s decision on the first issue: whether the district court erred in failing to rule as a matter of law that the juncture of the two roads constitutes a statutory intersection. In concluding that the issue was a question of fact properly submitted to the jury, the majority announces new Utah law. Because I believe the majority enters the domain of the Utah State Legislature, I respectfully dissent.
The majority creates a new test for determining a “statutory” intersection: (1) whether the two roads which form the juncture are publicly maintained; and (2) whether the driver of the vehicle approaching the juncture would be warned that an intersection exists. This approach may have practical appeal: a statute which prohibits the passing within 100 feet of an intersection should not be applied if a motorist does not have notice of the existence of the intersection. The first part of the test is derived from statute. The second part of the test cannot be found in either the Utah statutes or case law. Because this “visibility test” does not appear in any decision of the Utah Supreme Court, and because the statutes defining intersection are clear and unambiguous, I believe it is improper for the federal appellate court to make and apply new law for the State of Utah.
The relevant statutory law may be summarized as follows:
Utah Code Ann. § 41~6-58(a)(2):
No vehicle shall at any time be driven on the left side of the roadway under the following conditions: ... (2) When approaching within 100 feet of ... any intersection____
Utah Code Ann. § 41-6-l(19)(a):
An “intersection” is defined as:
The area embraced within the prolongation or connection of the lateral curb-lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle come in conflict.
Utah Code Ann. § 41-6-1(17):
A “highway is defined as:
[T]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.”
Applying the statutory criteria to the facts of this case inescapably reveals an intersection as a matter of law. The evidence was uncontroverted that the roads joined at right angles and were publicly maintained. The evidence also was uncontroverted that the semi-truck was passing in the left lane within 100 feet of the intersection when the collision occurred. Nowhere in the statutes is there a requirement that the intersection be visible to the motorist or that the motorist have notice of its existence. The district court erred, therefore, when it submitted to the jury the determination of whether the collision occurred in an intersection.
A review of Douglas v. Gigandet, 8 Utah 2d 245, 332 P.2d 932 (1958) and Hathaway v. Marx, 21 Utah 2d 33, 439 P.2d 850 (1968) also fails to reveal any visibility requirement for the establishment of an intersection. In Gigandet, the Utah court determined that the trial court incorrectly found an intersection as a matter of law because a side road did not constitute a “highway” and, therefore, could not form an intersection. 332 P.2d at 933. In Hathaway, the Utah court rejected the argument that an intersection did not exist because the side road was not readily visible. Relying exclusively on the statutory definition of an intersection, the supreme court determined that the trial court could as a matter of law regard the juncture as an intersection. 439 P.2d at 851.
Although it is improper to read the “visibility test” into the statutory language, this factor will come into play as a defense. The Utah court has recognized that the “violation of a standard of safety set by statute or ordinance is to be regarded as prima facie evidence of negligence, but is subject to justification or excuse if the evidence is such that it reasonably could be found that the conduct was nevertheless within the standard of reasonable care under the circumstances.” Thompson v. Ford Motor Co., 16 Utah 2d 30, 395 P.2d 62, 64 (1964). The defendant has the burden of proving excuse by a preponderance of the evidence once the violation of a safety statute has been proven by the plaintiff. Id. 395 P.2d at 65-66. The Utah court, in Hall v. Warren, 632 P.2d 848, 851 (Utah 1981), cites with approval the Restatement (Second) of Torts § 288A (1965) which lists the several permissible defenses:
§ 288A. Excused Violations
(1) An excused violation of a legislative enactment or an administrative regulation is not negligence.
(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor’s incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.
In this case, the defendants never had the opportunity to produce evidence of justification or excuse, because the plaintiffs never convinced the trial judge of a violation of the statute. Had the judge determined that the statute had been violated, the burden would have shifted to the defendants to show justification or excuse.
I believe that submitting the question of the existence of an intersection to the jury was error in light of the uncontroverted evidence which proved the existence of a statutory intersection. Accordingly, I would reverse and remand the case for a new trial.