(dissenting).
I respectfully dissent, because I believe the plaintiff made a submissible humanitarian case on the “submitted issue of failure to slacken speed.” My conclusion is consistent with that of Pritchard, C., who prepared a memorandum of dissent prior to his becoming a Judge of the Court of Appeals, and I set out his reasoning as expressed therein:
“The emphasis placed upon the testimony of defendant Crider as to what he saw and did is not in accordance with the well-established rules of setting forth and considering the evidence in the light most favorable to plaintiff, who here has the verdict. Only the evidence of defendant which is favorable to plaintiff need be considered.
There is no question of consideration of any antecedent or primary negligence in this case. The real and only question in this case is whether deceased, under all the facts and circumstances (which the jury could consider) was in a position of immediate danger under the humanitarian doctrine.
In the cited case of Ornder v. Childers, Mo., 327 S.W.2d 913, 916, the court did not say that as a matter of law the plaintiff made no humanitarian case. The reversal and remand for new trial was done because plaintiff’s humanitarian instruction did not properly hypothesize the point of imminent danger as a guide to the jury in determining same (under the practice of hypothesizing facts then followed). It is interesting to note that the Ornder case had merely the factual situation of the plaintiff’s left turn into a driveway when defendant was 186 feet behind him, and having the ability to swerve (the submission, which was held to be a jury question). There were no additional facts, as are here in evidence, which put defendant upon notice that if he did not take appropriate action something was going to happen ahead of him. Those facts are these:
1. This is not a passing situation which would not give rise to imminent danger. First, the jury could have found, from the evidence of skid marks, starting in Crider’s northbound lane and continuing left into the southbound lane, same were caused by his vehicle being pulled (not driven) in that direction. In his statement to the Highway Patrolman, given immediately after the accident, Crider did not contend that he was in the act of passing either before or at the time of impact.
In the opinion, emphasis is given defendants’ theory that the tractor started to turn left while the truck was still in the northbound lane, ‘then the truck “whipped around” into the southbound lane and hit the tractor at about the middle of the lane.’ That factual statement of the situation and the conclusion that it demonstrates primary negligence on Crider’s part ignores the further evidence which the jury could legitimately find.
It is of no consequence that the facts set forth in the opinion would support an un-submitted ground of failure to swerve, because the facts do support a zone of immediate danger within which Crider had the present ability to slacken his speed and avoid the collision. It is interesting to note that even if the evidence were insufficient to charge Crider with a duty to take evasive action 300 to 350 feet to the rear (which it is not), and the only place of immediate danger was when the trac*280tor-wagon started to turn left, to submit the case on failure to swerve (to the right) would undoubtedly cause an application of the term ‘gross speculation’ used in the opinion.
2. Again Crider’s testimony is considered, in view of the speeds of the two vehicles, to support a conclusion that he intended to proceed at an undiminished speed until he was fairly close to the tractor and then move into the west lane and pass it. Such a conclusion, made in this court contrary to what the jury could have found, ignores the evidence of humanitarian negligence. So does the further consideration of ‘respondent’s version of the facts, as to where decedent came into a position of immediate danger’ (when the tractor started to turn left, the opinion says, and that is not plaintiff’s theory).
It is just simply not correct to say that the jury could not have found that decedent came into a position of immediate danger when his son started to motion with his hands. The son testified that this was when the truck was 300 to 350 feet behind the tractor-wagon. Crider admitted he saw the waving of the hands. His further admission was that under the existing circumstances he could stop the truck within 300 feet. Surely the jury could (and did) find that:
a. This was a slowly moving tractor ahead of Crider, approaching a farm driveway, where such farm vehicles are wont to turn in.
b. The waving of arms by decedent’s son put Crider on notice that the decedent might make a left turn into the driveway, as the jury could find. Then the duty of Crider to take evasive action arose, and he had the ability timely to avert the collision by slackening his speed within the 350 to 400 feet available to him.
3. The opinion attempts to show that plaintiff made no case of humanitarian negligence upon the submission of failure to slacken. Again Crider’s evidence is considered. The facts do not consider what Crider’s admission is: He could stop within 300 feet at his speed and the circumstances existing. It is not the case that an effort to stop would not permit the tractor to cross the west lane of the highway (to a position of safety). Note that under the evidence Crider had 350 to 400 feet to stop after he was charged with knowledge that something was going to happen ahead of him. A stop here would have been effective under the facts, and the opinion ignores the many cases which say that if a stop can be made, the jury may conclude that slackening would have been effective to avoid the collision. See again Crook v. Dooley, Mo., 389 S.W.2d 809, 813 and cases cited. It is clear that if Crider had stopped within the 300 feet that he said he could do it, he would have been short of the tractor-wagon’s position. Under the evidence, he had up to 50 feet more in which to slacken, if slackening would take up more distance. Such a finding would thus not be resorting to gross speculation as the opinion says.”