On Respondent’s Motion for Rehearing
PER CURIAM.
Defendant continues to insist that its “sole cause” instruction (No. 5) was not erroneous. Evidently, we failed to make clear the impropriety of injecting an issue of contributory negligence, as such, in cases submitted solely upon humanitarian negligence. In the opinion, we pointed out that the instruction was erroneous in certain respects but did not specifically rule one of its most glaring errors, to wit, the abstract statement in the first paragraph thereof, which, for convenience, we here quote:
“ ‘The Court instructs the jury that the plaintiff, John Sheerin, was, under the law, bound to exercise ordinary-care and caution for his own safety at the time and place in question, that is such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances.’ ”
Defendant now contends that it “is well established that an abstract statement of law in an instruction will not require a reversal of a judgment, when it is accompanied with a further call for a finding by the jury of all the facts required by law to justify a verdict.”
The vice of the first paragraph of the instruction is that it is not the law in cases involving humanitarian negligence.
In Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484, the theory of humanitarian negligence was thus defined: “The doctrine from which the rule has been evolved is something more than an exception to the law of contributory negligence. It ‘proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.’ * * * It is of no consequence what brings about or continues the situation of peril. It may be through the obliviousness of the one imperiled, or through his inability to extricate himself from his environment, or through his efforts to rescue another, or through his sheer hardihood or recklessness.”
Counsel for defendant would be well advised to refer to the scores of cases that since have adhered to the doctrine thus announced. See cases collected in 22 Mo.Dig., Negligence,
He who reads Instruction No. 5 knows that,' regardless of its purpose, its effect is to distract the attention of the jury from the legal issue of defendant’s negligence and to direct it to the false issue of plaintiff’s negligence. The courts have long since condemned such instructions by con*490sistently holding them to be prejudicially erroneous. See cases cited in opinion.
The remaining assignments have been examined and are found to be without merit. The motion is denied.