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Click here for the full text of this decision FACTS:Jeffrey Perkins sued John Delaney for injuries Perkins received in an auto accident that occurred on the shoulder of the highway. Perkins asked the trial court to introduce the text of Transportation Code 545.058 into evidence. The section deals with driving on the right-hand improved shoulder of a road and says that driving on the shoulder must be done only when it is necessary and when it can be done safely, and only in one of seven circumstances. The trial court denied the request, but it did take judicial notice of the statute. A jury found Perkins 60 percent at fault and Delaney 40 percent at fault. The trial court entered a take-nothing judgment against Perkins. Perkins appeals. HOLDING:Affirmed. The court first finds that, because 545.058 is a legislative facts the trial court was not required to instruct the jury regarding the section, even though the trial court judicial notice of the statute. Furthermore, the trial court did not prohibit Perkins from introducing evidence of Delaney”s conduct in relation to the statute. The court next rejects Perkins’ assertion that the statute should have been read into evidence because on the issue of negligence per se. Section 545.058(a) permits driving on the right shoulder if it can be “done safely.” It does not impose an absolute duty but, instead, imposes a conditional duty that correlates to the common law duty of reasonable care. When the statutory duty is conditional, an instruction for negligence per se is precluded. OPINION:Arnot, C.J.; Arnot, C.J., Wright and McCall, JJ.

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