(concurring specially) :
I agree that this case should be remanded for a new trial.
Setting aside for the moment minor difficulties with the large number of instructions (47 were given) to the jury and directing attention to fundamentals it is my opinion that an insuperable obstacle relates to the submission to the jury of issues of fact concerning the deceased’s contributory negligence which the evidence does not justify.
There is always a keen awareness that before any specific issue as to the defendant’s negligence is submitted to the jury there must be a reasonable basis in the evidence which would support such a find--ing. This is a fair, reasonable and proper rule. But, in what impresses me as over-zealousness of defense, the corollary is often lost sight of: that before any specific issue of fact as to the plaintiff’s contributory negligence should be submitted to a jury, there must also be a reasonable basis in the evidence to support such a finding. In fairness the rule should be applied with the same force to protect the rights of the plaintiff as the defendant.
The undisputed fact is that Mr. Taylor had just arrived at this scene to take care of the wrecked Milner automobile and trailer, and that he proceeded with dispatch to carry out this objective. The Milner car was so wrecked that it was necessary to lift and tow it from the rear end. This required removal of the trailer, which *351was done. It appears to me that the best way to guard against accidents with the disabled Milner car was just what Mr. Taylor did: He placed the wrecker south of it, facing south, with both headlights and its turret light on; and proceeded to attach the trailer to the car of Mr. Kes-ter, who had agreed to tow it to town. It is significant that Mr. Taylor was between the Kester car and the trailer, leaning over fastening the trailer hitch, and had been so engaged for “a couple of minutes” when the collision occurred. While there is always danger involved in being so engaged on the highway, so far as I can see, each thing he did was essential to the accomplishment of the task he was required to do.
I can see nothing in the evidence to. support a finding that Mr. Taylor was negligent either in leaving the wrecker on the highway for an unreasonable length of time; or in failing to keep a lookout for and seeing the approaching Johnson automobile. It is submitted that if some injury to a third party had resulted in connection with the deceased’s conduct, there exists no basis whatsoever upon which a case charging him with negligence could have gone to a jury on either of those issues. Similarly, there was no justification for the court submitting to the jury the question of his contributory negligence as to them.
■ The deceased’s duty and alleged failure to promptly remove the wrecker from the highway was dealt with in several of the defendant’s requests, five of which were given to the jury. All of them conclude by saying that for his failure to do' so they may find him negligent. It is not doubted that he had the duty to remove the wrecker as soon as that reasonably could be done. But the evidence here provides no foundation for a finding that he left the wrecker there for any longer than was necessary. Further, and more important on this point, is the fact that the length of time the wrecker had been there could have had no effect whatsoever upon the approaching Johnson car. Whether it had been there for minutes, or an hour, or more, the situation from the defendant’s point of view and the resulting collision would have been’ exactly the same. Accordingly, 'even if the wrecker had been on the highway longer than necessary, which as. above Stated, the evidence is clear it was not, I fail to see how the length of time it had been there could have any bearing whatsoever upon the proximate cause of the collision. For both of the reasons just stated, it was error to submit to the jury the issue of. negligence in leaving the wrecker on the highway -for an unreasonable length of' time.
The second basic error in submitting an. issue not justified by the evidence relates to defendant’s duty to look for and see ve^ hides on the highway as set forth in In-, struction No. 28: ■
*352“The duty to use reasonable care to keep a proper lookout for other vehicles or things upon the highway, includes the requirement to actually see as well as look, for all vehicles reasonably within the range of his vision which may constitute a hazard. If you find that James W. Taylor should have seen defendant’s vehicle before the collision, it was then his further duty after having seen the defendant’s car to use such care and diligence as a reasonable person would use under the circumstances to avoid injury to himself, and if you find he failed to use such care and diligence then you may find he was negligent; and if you find that such negligence, if any, was a proximate cause of his injury, then the plaintiffs may not recover against the defendant.” (Emphasis added.)
In considering the propriety of applying this instruction to this case these facts are important: Mr. Taylor was stooped down between the trailer and the Kester car, with his attention necessarily and properly focused upon his task of fastening the trailer hitch. Under such circumstances, he was not obliged to anticipate that an automobile would swerve from its course as the Johnson car did to strike him. It is obvious that he couldn’t be doing the job required of him and also be watching for such traffic. And even if he had been looking, the trailer was between him and traffic approaching from the south, so that from his position engaging the trailer hitch, it is doubtful that he could have seen the Johnson car approaching. Furthermore, even if he had seen it, from the defendant’s own testimony that she swerved at the last instant, there is nothing deceased could have done to avoid the collision. Therefore, under uncontrovertible facts, there is no possible justification for imposing the duty upon the deceased to look for vehicles on the highway; and certainly not to require him to “actually see” and to act for his safety or be held negligent.
There are a number of other difficulties with the instructions given, which, in the interest of brevity, need not be detailed here, except that I deem it appropriate to make the following comments: First, I believe it is fair to state that both counsel for the plaintiff and defendant perpetrated an unconscionable imposition upon the trial court in their requests. The plaintiff submitted over 20, and the defendant over 30. A number of them were quite long and involved, and in numerous instances repetitious; and in some aspects represented attempts to argue the party’s own position rather than to fairly and accurately present the disputed issues to the jury. Out of the plethora of requests, coupled with other instructions which it was necessary to give, the court gave a total of 47 instructions to the jury. I assume that no one will deny that this is undesirable, nor that the above stated faults *353should be avoided in the event of another trial.
CALLISTER, J., concurs in the result for the reasons stated in the opinion of Mr. Justice Crockett.