dissenting.
I dissent, respectfully but vigorously. To my mind the court has been taken with a seizure of very doubtful omniscience in deciding how the jury “surely must have understood” the charge, and I will try, very briefly, to state why I think so.
This action is not complicated, in a legal sense, but the casualty involved three automobiles, three drivers and two collisions, which is to say. there was a good deal of motion to be sorted out mentally by the triers of fact. Although counsel is not specific, plaintiffs apparently chose the method of submission suggested and illustrated by present MAI 35.03, which I take to be appropriate when there are multiple defendants and several separate negligent acts are submitted in different instructions. See: O’Dell v. Custom Builders Corp., 560 S.W.2d 862, 873-874[11] (Mo.banc 1978). One of the cardinal principles of the MAI is that the fact issues should be submitted briefly and accurately, Stemme v. Siedhoff, 427 S.W.2d 461, 466[8] (Mo.1968), and the jury should be advised of defendants’ duty or breach of that duty in concise and unambiguous words and phrases which do not require further classification if that is possible. Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 27[13][14] (Mo.banc 1968). *403It is certain that the format suggested by MAI 35.03 requires that the parties be singled out and identified in the verdict-directors, Cash v. Bolle, 423 S.W.2d 743, 744-745 (Mo.banc 1968), and I have the view that the negligent acts relied on should be as carefully isolated and spelled out. Plaintiffs’ contention that they were simply following the requirements of the MAI overlooks that it is they who undertook to modify MAI 17.13 in order to submit the multiple negligent acts hypothesized in Instructions 2 and 3. Inasmuch as the modification is plaintiffs, it is they who have the burden to make it perfectly clear no prejudice resulted. Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259[3] (Mo.banc 1967); Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 262 (Mo.1973).
I agree that we are entitled to consider how the instructions would be understood by a jury of reasonably intelligent men and women, but the converse is also true — the language of instructions must be unambiguous to such a jury, Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712, 716[6, 7] (Mo.App.1974); R-Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 639[10] (Mo.App.1970), and I take it defendant Brewer’s claim of error should be assessed by considering the whole charge. Jefferson v. Biggar, 416 S.W.2d 933, 939[5] (Mo.1967).
The petition alleged injury as a direct result of the defendants’ joint and concurring negligence and the plaintiffs’ submission was framed so as to permit recovery if: a) defendant Elayer violated the stop sign on Broadmoor, or b) defendant Brewer failed to act to avoid collision with defendant Elayer after danger of collision became apparent, or c) defendant Brewer was on the wrong side of the road at the time of “the collision.” To elaborate: as against defendant Elayer, plaintiffs submitted violation of the signal (“stop sign”) on Broadmoor as prescribed by MAI 17.01, and added the third option provided by MAI 19.01. instructions 3 and 4, already fully set out, submitted as a multiple negligent act [MAI 17.02] defendant Brewer’s: a) failure to swerve after collision with Elayer became apparent [MAI 17.04] or b) being on the wrong side of the road at the time of the [unspecified] collision [MAI 17.13, modified]. Instructions 3 and 4 were also modified by adding the third option provided by MAI 19.01. It should also be noted that defendant Elayer submitted plaintiff Laney Deskin’s contributory negligence [MAI 32.-01 and 17.04, modified] in failing to act after danger of collision [with whom again unspecified] became apparent. Further, the issue of damages was submitted, as to plaintiff Laney Deskin, by MAI 4.01,. which refers to a single “occurrence.” Such use of MAI 4.01 is apparently contemplated by MAI 35.03 because the whole casualty is regarded as a single transaction. O’Dell v. Custom Builders Corp., supra, 560 S.W.2d at 873.
Remembering that the plaintiffs’ evidence established the occurrence of two collisions, both of which were the subject of a good deal of testimony, we may then suppose that a reasonably intelligent jury, reading the instructions as given, would first read Instructions 2 and 3, referring to “collision with the Elayer automobile” and simultaneously to “the” collision, would have noted that Instruction 7 simply refers to a collision, and finally would have read Instruction 10, which refers to a single occurrence. My colleagues hold that any reasonable jury would understand in this context that the second alternative submission in Instructions 3 and 4 referred to another collision, 220 feet south of the first, with another vehicle. I do not believe that, nor do I believe that ambiguous and confusing instructions can be cured by oral argument. Wills v. Townes Cadillac-Oldsmobile, Inc., supra, 490 S.W.2d at 262, Neither do I understand that the rule of deference stated in Edie v. Carlin, 369 S.W.2d 610[613-614] (Mo.App.1963), extends to prejudicial or unauthorized modifications of the MAI. Chappell v. City of Springfield, 423 S.W.2d 810, 811[2] (Mo.1968). I therefore dissent.