dissenting.
I am unable to join in the principal opinion because I am persuaded that the trial was impacted by several errors. The errors are prejudicial because the jury clearly could have assigned a percentage of fault to the driver. It is indeed surprising that it found him wholly free from fault when, with good vision, properly operating headlights, and no obstacles in his way, he did not see the pedestrian until the moment of impact. If the trial is free from error the verdict controls, but I find it hard in this context to excuse any error as nonprejudicial.
1. Erroneous Instruction in Final Argument
During final argument the driver’s counsel argued as follows:
“ ... in order for you to find against [driver] they have to ... it’s their burden to show to you that his headlights illuminated [pedestrian] in his lane and [driver’s] lane for at least a hundred eight feet.”
The driver promptly objected, asserting that “that’s a misstatement of the law, your honor.” The court overruled the objection without comment.
Counsel’s assertion is distinctly an instruction on the law, rather than an appropriate argument. It uses the term “burden,” which is a legal concept, and presumes to tell the jury what its duties are under the circumstances (“you have to.”).
Driver’s counsel points to the broad discretion afforded counsel in argument. The contention is inappropriate in the present context because the court has no discretion to condone legal error in argument by overruling a proper and timely objection. Fox v. Ferguson, 765 S.W.2d 689, 691 (Mo.App., *3551989), citing Halford v. Yandell, 558 S.W.2d 400, 412 (Mo.App.1977); Langdon v. Wight, 821 S.W.2d 508 (Mo.App.1991). The court, by overruling the objection, implicitly indicates to the jury that counsel properly stated the law.
The court’s opinion points to the evidentia-ry base for driver’s argument in the expert testimony that a car traveling 30 miles per hour can be brought to a dead stop in a minimum of 108 feet and a maximum of 262 feet, and holds that the argument was simply a “a fair attempt to apply the uneontested evidence to the law.” The court fails to perceive the vice in the instruction, which lies in telling the jury that the driver need consider only the time that the pedestrian was present in front of him in the west center lane (“illuminated [pedestrian] in his lane and [driver’s] lane ... (emphasis supplied)).”
The jury is not so closely confined. There was evidence that the pedestrian paused on the north shoulder of Big Bend until a westbound car passed; crossed the westbound curb lane, consuming two seconds (five feet per second); stopped for two seconds; and then crossed to a point in the center westbound lane, with the crossing consuming at least one second; and then remained standing in the westbound center lane for 3 to 5 seconds. During this time the driver, at 30 miles per hour, would have traversed at least 225 feet (45 times 5) before reaching the point at which the pedestrian was hit, plus 135 to 225 feet before the collision. The argument told the jury that the only material segment of time was the last one just described, plus perhaps one second to cross the north half of the west center lane. The driver’s expert testified as follows:
“The first thing that the driver has to do is to perceive there’s some kind of hazard, in this case would be a pedestrian that might be ... invading their part of the road.”
“The second step once they have perceived that there’s a hazard and they make a decision as to doing something about avoiding that hazard is then reacting. And in taking some action, beginning to take some action.”
The jury had the responsibility of determining the point at which the driver, in the exercise of the highest degree of care, could and should have noticed the pedestrian and taken action to avoid an accident. It well might have found that the driver could and should have sensed danger as soon as the pedestrian started across the westbound curb lane. The driver testified that his vision was good and his headlights in working order. His expert testified that a moving person was easier to spot than a stationery person. Counsel’s “burden” argument, implicitly approved by the court, put restrictions on the jury in excess of the law’s requirements. This constituted legal error. The Court’s footnote 5 does not answer my concerns because the argument is essentially an instruction. Nor do I see how it is helped by the expert testimony.
I have no quarrel with Riscaldante v. Melton, 927 S.W.2d 899 (Mo.App.1996) which, in its emphasis on the authority of juries to determine the facts in accident cases on the basis of their general understanding of the operation of automobiles, seems to support my position as much as it does the court’s. I also agree, as exemplified by American Family Mutual Insurance Company v. Robbins, 945 S.W.2d 52 (Mo.App.1997), that a plaintiff in a lookout case must show that the defendant could have perceived the danger in time to take remedial action which, according to the driver’s expert, might have included stopping, sounding a warning, or swerving. (I disagree with the intimation, elsewhere in the court’s opinion, that the pedestrian was precluded from complaining about failure to swerve because he did not plead it. The purpose of a lookout is to be able to take remedial action. Neither the pleading nor the instructions require more specification.) The court also cites Giddens v. Kansas City Southern Railway Company, 937 S.W.2d 300, 308-9 (Mo.App.1996) in justification of its conclusions. With respect, I cannot see the slightest bearing of that case on this one.
The argument is also technically erroneous in indicating to the jury that the pedestrian must show that the driver could have completely avoided any collision after he was obliged to take notice. Had the driver been *356able to apply the brakes sooner the pedestrian’s injuries might have been much less severe. The possibility of minimizing the damage is entirely appropriate in a comparative negligence ease. The principal opinions says that there is “not a scintilla of evidence” that any action by the driver could have lessened the damages. It seems obvious that if speed had been checked, the pedestrian would not have been hit so hard.
Missouri Approved Instructions are noted for terse generality. It is entirely proper in, and indeed the function of, closing argument to relate the generalities of the instruction to the facts of the ease at hand. Because MAI instructions are so general, however, the court must be alert to attempts by arguing counsel to expand the instructions or to restrict the jury’s fact-finding authority. The court below condoned a legally erroneous statement. The error was patent. It is too serious to excuse by referring to other portions of the argument. The trial court might have avoided problems if the judge, rather than overruling the objection, had simply said that “the jury will be guided by the instructions of the court,” thereby making it clear that the instructions contained the only law for the jury’s guidance. Erroneous legal argument compromises the purpose of MAI and, if the court’s opinion is followed, portends a return to the late and, to my perception unlamented, humanitarian doctrine.
2. The Photographs
I recognize the authorities cited in the court’s opinion, to the effect that the admission of photographs is almost always a matter of discretion for the trial court. This case, however, requires a closer evaluation. The variation in time is not a substantial infirmity, in that there is no indication that the beginning of dawn in the east provided any significant degree of illumination for westbound drivers. Thus that variation could be explained to the jury.
The absence of headlight illumination, however, presents much more of a problem. The photographer agreed with the pedestrian’s counsel’s propositions that “a camera lacks the sensitivity in determining especially contrasts between darkness and light;” that it was “very difficult to take a photograph which would accurately depict that contrast;” and that a photograph tended to “show everything as completely black whereas the human eye might see it as a shade.” On examining the photographs the scene appears to be very dark indeed and portions of the roadway seem to be invisible because of heavy shade from overhanging trees. I perceive a substantial capacity to confuse rather than to enlighten. See Simmons v. Shomer, 395 S.W.2d 507, 514 (Mo.App.1965.)
Exact reproduction is not always essential if variations can be explained. State ex rel State Highway Commission v. Eilers, 406 S.W.2d 567 (Mo.1966.) Discretion is broad, but is subject to controls. It cannot reasonably be said that the pictures which do not show illumination by headlights accurately portray the accident scene as delineated in the evidence received at this trial. In contrast to Eilers, because of the importance of lighting to this case, the misleading effects cannot be corrected by testimony as to the variations in conditions. The prejudicial effect outweighs any helpfulness to the jury. The defendant argues that it would not be possible to obtain photographs showing the effect of the headlights on the total picture, not only because of traffic problems but also because moving lights in the picture would blur the image. There is, however, no abstract right to use photographs if pictures which do not distort the scene cannot be had. In automobile cases the primary reliance is on the testimony of eyewitnesses and on such objective evidence as may be found at the scene. Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc, 1967.)
The trial judge overruled objections and admitted the photographs into evidence, observing that they might be helpful to the jury. I cannot see how photographs which show the scene as darker than it actually was would be helpful. The situation is different from one in which the only difference is in the seasonal foliage. The only purpose of the photographs was to emphasize the darkness of the scene. It is unfair to receive photographs which inevitably tend to confuse the jury about the vital issue of visibility.
*357So this issue cannot simply be brushed off as an exercise of discretion. Although the error considered in Part I of this opinion is sufficient to require reversal, the admission of the photographs, under the circumstances, was prejudicial error giving further support to the conclusion I urge.
3. Expert Testimony about Headlights
The trial court also erred in allowing the driver’s expert to testify about the effect of the headlights of eastbound cars on the driver’s visibility. Inasmuch as the driver admitted that he saw neither the pedestrian nor any approaching headlights, the intimation that, had he looked, his vision might have been restricted by headlight glare, is rank speculation for which no foundation was laid. Our courts do not look with favor on attempts of experts to reconstruct automobile accident scenes or to make observations about what eyewitnesses might have seen. See Housman v. Fiddyment, 421 S.W.2d 284, 289 (Mo. banc 1967). Such speculations might be extremely damaging in a contra factual case such as this one, in which counsel is arguing what a defendant who admits that he saw neither the pedestrian nor his headlights might have seen if he had been observant.
For the errors here considered, the judgment should be reversed and the case remanded for a new trial.