(dissenting).
I respectfully dissent from the opinion of Ruddy, J. I cannot agree that the evidence supports the findings and conclusions therein. Plaintiff failed to make a sub-missible case under humanitarian negligence on either of the two grounds submitted by her.
Plaintiff’s evidence was that she had stopped her car at the intersection of Grand and Penrose. She had been waiting for some minutes during this rush hour period for some heavy traffic to pass on Grand Avenue before she continued across the intersection. She observed defendant’s northbound station wagon. Defendant’s vehicle continued to the intersection where he made a right turn on Penrose and struck her parked car. Plaintiff’s son, Carl, age 14 and a passenger in his mother’s car, testified that Defendant Moss was traveling twenty miles per hour north on Grand Avenue. As Moss turned the corner he had a speed of fifteen to twenty miles per hour. He applied his brakes and struck their car parked at the intersection. Plaintiff gave no other evidence as to the speed of defendant’s vehicle as he turned the corner or how the accident occurred. Defendant Moss stated that he was driving north on Grand at twenty miles per hour, that he reduced his speed to ten miles per hour as he turned right into Penrose, and that he then saw plaintiff’s car thirty feet east on Penrose about one foot over on his side of the avenue. It had a speed of twenty miles per hour. He applied his brakes hard and stopped his vehicle in approximately ten feet, but plaintiff continued west and struck his vehicle while it was stopped. Moss further testified that there was not sufficient room between the parked vehicle on the south side of Penrose and plaintiff’s car for him to safely pass, but plaintiff’s evidence gave him six to twelve inches or from three to six inches on either side of his vehicle to pass and continue eastward.
In a humanitarian case plaintiff must prove every element of her theory of submission by substantial evidence or by reasonable inferences therefrom. It is equally established that a judgment for plaintiff cannot stand if it is based solely upon speculation, conjecture, and surmise, either with respect to the plaintiff’s position of imminent peril, or after notice thereof with respect to defendant’s ability, with the means at hand and with safety to himself and others, to have averted the accident and resulting injury. Vietmeier v. Voss, Mo., 246 S.W.2d 785; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680; Lane v. Wilson, Mo.App., 390 S.W.2d 943.
First, plaintiff contends that defendant could have stopped and averted the accident. Plaintiff’s evidence was that defendant at a speed of fifteen to twenty miles per hour turned the corner at the intersection of Grand and Penrose Avenues and he struck her stopped car. No evidence was introduced by plaintiff to show the distance within which, moving at a speed of fifteen to twenty miles per hour under these circumstances, the station wagon of defendant could have been stopped. Plaintiff offered no other evidence on these issues. Plaintiff’s proof, therefore, does not support her humanitarian submission. She must rely upon defendant’s evidence of speed and stopping distances to make her case, if possible. Defendant testified that he was moving at a speed of ten miles per hour when he turned the corner, that plaintiff was approaching him from the east about one foot over on his side of the avenue at a speed of twenty miles per hour, and that he stopped his vehicle before it was struck by *338plaintiff. It was further in evidence that with some gravel on the street he did, in fact, stop his vehicle after applying his brakes hard in a distance of ten feet. Plaintiff cannot now disregard her evidence as to speed and recover on the theory that the station wagon was traveling ten miles per hour, and therefore defendant could have stopped short of the collision, Ordinarily the plaintiff is entitled to the benefit of defendant’s favorable evidence, if any; but I am equally aware that defendant’s evidence can benefit plaintiff only if certain qualifications are met. It must not contradict plaintiff’s theory of her case and her own evidence. Not only does defendant’s evidence contradict plaintiff’s evidence on these issues, but also plaintiff’s theory of how the accident occurred is contradicted. She therefore is not entitled to the benefit of defendant’s evidence. Fenneren v. Smith, Mo., 316 S.W.2d 602; Price v. Nicholson, Mo., 340 S.W.2d 1; Appelhans v. Goldman, Mo., 349 S.W.2d 204.
Next, plaintiff contends that defendant could have “slowed” his vehicle and thus avoided the collision and plaintiff’s injury. This theory is not supported by the evidence and cannot be sustained. By her own evidence plaintiff was stopped at the intersection and she was not moving. The “slowing” theory is applicable when both vehicles are moving and plaintiff proves that if defendant had only “slowed or slackened” the speed of his vehicle she could have passed or moved by safely, and there would have been no collision. The majority opinion also agrees that there was not sufficient evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile, therefore I will not pursue this point further.
Under the evidence neither submission to the jury by plaintiff is supported and the verdict for plaintiff could only be based on speculation, conjecture and surmise; therefore, I would hold that it was proper for the trial court to order a new trial.