dissenting.
I have two reasons for dissenting.
First, I believe the imposition of comparative negligence is purely a matter for legislative action. The majority opinion states that thirty-two of the forty states which utilize some form of comparative negligence or fault have done so by legislative enactment — clear recognition that this subject is for the General Assembly. I believe we have intruded into an area which belongs to the legislature. We have pierced and circumvented the revetment so carefully designed to separate, segregate, preserve and distinguish the identities and functions of judicial, legislative and executive branches. It is not that the law is immutable or galvanized, but I believe imposition of comparative negligence or fault is not a matter for judicial fiat.
My second basis for dissent is that I believe that the plaintiff made a submissible case for jury consideration under the facts as reported in Gustafson v. Benda, 661 S.W.2d 29 (Mo.App.1982), appended to the majority opinion.
The circumstances of this case support the fact that it falls within the last clear chance doctrine rather than the humanitarian doctrine, and there is a distinction to be made between the zones of peril in each. I believe it important to maintain the integrity of both doctrines and the differences between their zones of peril.
In last clear chance, when the plaintiff is in the zone of peril, there is nothing he can do to extricate himself. In this particular case, plaintiff was in the last clear chance posture, for when defendant decided and started to make her turn, plaintiff was in a position of peril from which there was no escape by anything he might accomplish. Defendant’s negligence was in making her turn. It seems to me that plaintiff was in the last clear chance zone of peril situation as the turn was made.
I believe that McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (banc 1952), referred to in the majority and Eastern District opinions, failed to recognize and maintain the distinction between the two doctrines — last clear chance and humanitarian — and to the extent that it fails to do so, that case should no longer be followed.