(dissenting).
I respectfully dissent from the ruling herein that it was not error to give sole cause Instruction D-6. My view is that Instruction D-6 was prejudicially erroneous for the reasons stated by Coil, C., in his dissent in Division No. 1 as follows:
“The facts from defendant’s standpoint (summarized as stated in the opinion) are that plaintiff was a passenger in an automobile driven northbound on a 2-lane highway by her husband which stopped in the northbound lane. Defendant, also going north (following the car in which plaintiff was riding), started down a hill at 35 m. p. h. and when halfway down the hill saw plaintiff’s car stopped in the northbound lane. Defendant testified that he could not thereafter stop in time to avoid running into the rear of plaintiff’s car. Defendant would not say how far from plaintiff’s car he was when he first saw it, but he did say that one could not see more than 250 feet from the point of collision southwardly (the direction from which he was approaching) ; the most reasonable, if not the only, inference from that testimony is that by defendant’s own admission he could have seen plaintiff’s husband’s car when he (defendant) was 250 feet from it.
“Plaintiff’s case was submitted by an instruction under the so-called ‘rear-end collision doctrine.’ Such an instruction, while we hold it submits ‘specific’ negligence, is nevertheless, in form at least, a ‘general negligence’ submission. Defendant’s instruction here in question, in pertinent part (see page 412 of principal opinion for complete instruction) instructed only this — that if the jury found plaintiff’s husband was negligent in stopping his automobile in the northbound traffic lane of the highway and that such negligence, if any, was the sole cause of the collision between the two automobiles, and that the collision was not due to any submitted negligence of defendant Vaughn, then the verdict would be for defendant and against plaintiff.
*417“It seems clear to me that plaintiff’s husband’s negligence in stopping in the northbound lane of the 2-lane highway could not have been the sole cause of the collision if the defendant, in the exercise of the highest degree of care, could and should have stopped or swerved in time to have avoided the collision. It must follow, it seems to me, that defendant’s sole cause instruction should have hypothesized facts upon which the jury reasonably could have based its conclusion that plaintiff’s husband’s negligence was the sole cause. It is true that the instruction permitted the jury to make the conclusionary finding that plaintiff’s husband’s negligence in stopping the car on the traveled portion of the road constituted the sole cause of the collision. But the facts which would have supported the jury’s conclusion in that respect were not hypothesized but were improperly omitted. Semar v. Kelly [352 Mo. 157], 176 S.W.2d 289, 292 [5, 6]; Long v. Mild [347], Mo. [1002], 149 S.W.2d 853, 857-861; Johnson v. Cox, Mo., 262 S.W.2d 13, 15[5].
“It is also true that the instruction (D-6) negatived defendant’s negligence as submitted in other instructions. The only respect in which defendant’s negligence was submitted in other instructions in this case was that defendant was negligent in running into the rear of plaintiff’s automobile which was stopped and stationary in the northbound lane of the highway. Now, of course, it is proper to and it is required that a sole cause instruction negative defendant’s negligence which is submitted in plaintiff’s instructions. But that requirement does not fulfill the separate additional and essential requirement that a sole cause instruction must hypothesize a fact situation which will make clear that the jury by its specific findings will have found that no acts or omissions of defendant concurred in causing the casualty in question. Semar v. Kelly, supra.
“For example, in the present case instruction D-6 should have contained a hypothesis of facts along this line — and if you find that when the defendant in the exercise of the highest degree of care could and should have seen plaintiff’s husband’s car stationary in the northbound lane of the road in question, defendant’s car was then so close to plaintiff’s husband’s car that defendant could not in the exercise of the highest degree of care have avoided a collision by stopping or swerving, and that plaintiff’s husband’s negligence in stopping his automobile in the northbound lane of the 2-lane highway was the sole cause of the collision and that the collision was not due to any negligence of the defendant as submitted in other instructions, then your verdict will be in favor of the defendant and against the plaintiff.
“A defendant is entitled to win a lawsuit if the jury finds that defendant was not negligent in any respect submitted by plaintiff. That is, the defendant may say to the jury, ‘If you find I was not negligent in any of the respects submitted in plaintiff’s instruction, then you must find for me.’ But if a defendant wishes to go farther and use and have the advantage of the argumentative device known as a sole cause instruction, he should have the burden of hypothesizing facts which, if found, eliminate any act of defendant as a concurring cause. When a defendant voluntarily assumes that unnecessary burden (it is in truth an unnecessary burden — because defendant may accomplish the same thing by a true converse instruction), he may discharge that burden only by authorizing a sole cause finding which eliminates (by virtue of a finding of hypothesized facts as opposed to the finding of an abstract conclusion) his concurrent negligence. The fact that a defendant may negative the negligence submitted by plaintiff has nothing whatever to do with whether there was a sufficient hypothesis of facts, a finding of which supports the jury’s conclusionary finding that someone’s negligence other than defendant’s was the sole cause. The two requirements, i. e., hypothesizing sufficient facts and negativing submitted negligence, are separate and distinct, and when an attempt is made to equate them confusion results.”
I would reverse and remand.