In this personal injury action for damages in the amount of $20,278.25, the jury verdict was for defendant and plaintiff has appealed.
Plaintiff was a front seat passenger in an automobile operated by Mr. Ernest Evans, her brother-in-law. Mr. Evans traveled eastward on what was referred to as the Stockyard Road to its intersection with Range Line Road, a north-south four-lane through highway. He stopped his automobile at the intersection and waited for a southbound automobile to pass. He then entered the intersection and proceeded northeastward and turned left onto the outer or east lane of the two northbound traffic lanes, although at the time the inner or west lane was open. After the automobile had traveled northward 75 to 100 feet on Range Line Road, according to plaintiff’s evidence, it was struck in the rear by defendant’s truck which was and had been for some distance traveling northward in the east traffic lane. Plaintiff’s only evidence as to the speed of defendant’s truck was that it was going fast. The truck driver testified that his speed was 45 miles an hour.
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Plaintiff first contends that the trial court erred in refusing to give her requested instruction submitting what is called the rear-end collision doctrine. This is the rule of law which recognizes that “if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Hughes v. St. Louis Public Service Co., Mo.App.,
In order for plaintiff to have been entitled to an instruction submitting the rear-end collision doctrine as a basis for recovery, it was necessary that the evidence establish that the front vehicle was “in a portion of the highway where [the operator] should have it or [was] entitled to have it in view of the course in which he [was] proceeding,” Hughes v. St. Louis Public Service Co., supra, and that the defendant’s vehicle, which was traveling behind plaintiff’s vehicle and in the same direction, overtook and ran into the rear of the one ahead. See Witherspoon v. Guttierez, supra, and Rosenfeld v. Peters, Mo.,
*176 Plaintiff next contends that the trial court erred in refusing her requested instruction submitting humanitarian negligence in failing to slacken speed or swerve or sound a warning. Certain additional facts are necessary.
When Mr. Evans “started to move his car” onto Range Line Road after waiting for the southbound car to pass, plaintiff saw defendant’s truck “just over the tracks” to the south. The exact distance is not shown, but Mrs. Evans who was plaintiff’s sister and also a front seat passenger, said the truck was then about “three blocks” away. After the Evans automobile had moved eastward onto the highway and about the time that Mr. Evans started to turn to the left, defendant’s truck was “a block or a little more” away, and Mrs. Evans estimated a block to be 300 feet in length. At that time the truck “had got so close” that Mrs. Evans said, “Oh, Ernest, hurry, that truck is coming so fast.” The only evidence of plaintiff as to the speed of the Evans automobile as it entered the northbound lane was the testimony of Mrs. Evans that it was proceeding at “just ordinary speed that you would put out to cross,” which she estimated to be twenty or twenty-five miles an hour, or “something like that.” Defendant’s driver testified that it was proceeding at five to ten miles an hour, and he testified that he was operating his trailer-truck north on Range Line Road in the outer or east lane at 45 miles an hour. He further testified that he saw the Evans automobile while it was stopped at the intersection, and when his truck was about 200 to 250 feet from the Evans car it started to move from the stop sign and then proceeded northeastward at an angle. When his truck was about 20 to 30 feet from the Evans automobile he saw that it “was coming into [his] lane,” and he then applied his brakes but struck the right rear of the automobile while it was still going northeast and before it was completely in the east lane. The left front of the truck and the right rear of the Evans automobile were damaged. The driver testified that he could pull out to pass a car ahead of him when he was ten feet behind it if “it had been in one lane all the time,” but that he could not have pulled out to pass in this case.
The first and basic requirement of liability under the humanitarian rule is what previously has been denominated a position of imminent peril, but which is now referred to in the new jury instructions as a position of immediate danger of being injured. The change in terminology has not changed the substance of this requirement. It is only when this position arises or exists that the humanitarian rule seizes upon the then existing situation, in effect
"blotting out primary or antecedent negligence,”
Downing v. Dixon, Mo.App.,
Plaintiff’s only argument in her brief in support of her contention that the evidence authorized a humanitarian submission is that defendant’s driver “saw the automobile in which plaintiff was riding for a distance of well over one-quarter of mile,” and he “saw the car as it was stopped just west of Range Line Road and that he saw it come onto the highway thereafter,” and although the road had two northbound traffic lanes and he was in the outside lane “he did nothing in the way of taking evasive action until the front of his truck was something like 20 to 30 feet from the automobile in which plaintiff was riding.” This may demonstrate primary negligence on the part of defendant’s driver, which was submitted to the jury and by it resolved against plaintiff, but it does not, under the facts of this case demonstrate humanitarian negligence. It is extremely important to recognize and keep in mind the basic difference between primary negligence and humanitarian negligence, and that “not every state of facts resulting in injuries from moving objects gives rise to * * * a cause of action” under the humanitarian rule. Smith v. Siedhoff, Mo.,
Plaintiff next asserts error resulted in the trial court giving at defendant’s request an instruction on right of way which followed MAI No. 14.05, because, as stated in her motion for new trial, (1) it “was not authorized under the evidence of this case (2) it “improperly limited and restricted the plaintiff’s right of recovery against the defendant under the circumstances and evidence surrounding the injuries received by plaintiff;” and (3) it “constituted an abstract and unauthorized declaration of the law, it was not justified under the testimony in this case, and was prejudicial and harmful to the rights of the plaintiff.” In her brief she also asserts that this instruction was erroneous because she was “entitled to submit her claim * * * under the humanitarian doctrine.”
Almost all of the argument in plaintiff’s brief under this point is directed to the contention that an instruction on right of *178 way is not proper in a case submitted under the humanitarian doctrine, an issue we shall not discuss because we have determined that the evidence did not authorize a humanitarian submission. Other than on the basis that she claims to have had a humanitarian submission, she makes no effort either in the motion for new trial or in her brief (point or argument), to demonstrate how or in what manner the instruction “limited and restricted” her right of recovery, was “prejudicial and harmful” to her rights, or constituted an “unauthorized declaration of the law.” We need not consider further these abstract assertions. She does argue that the instruction was not authorized under the evidence, but the argument presented is that “Under plaintiff’s testimony, in the present proceeding, the testimony of both plaintiff and her sister, Mrs. Ardene Evans, was that defendant’s truck was south of the railroad crossing on Range Line Road, well over 1,000 feet away from the automobile in which plaintiff was riding, when the automobile in which plaintiff was riding moved from a stopped position onto Range Line, turned north, and was.thereafter struck from the rear by defendant’s truck.” We do not agree entirely with this statement of plaintiff’s evidence, but accepting it for the purposes of this discussion, it ignores entirely the previously mentioned evidence offered by defendant which clearly authorized the instruction. The court did not err in giving MAI No. 14.05 on right of way.
The judgment is affirmed.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.