(concurring).
I concur in the result because I think plaintiff’s evidence shows a case of primary negligence against defendant Hays, which plaintiff should have an opportunity to try, and because I agree that Instruction 1 authorizing a verdict against defendant McGrane was not erroneous. However, I deem it advisable to state my view that the humanitarian negligence rule is not applicable to a situation where a plaintiff is riding as a guest in a defendant’s automobile. Certainly, such a plaintiff is never in a position of imminent peril from the car defendant is operating and I think that is necessary to make the humanitarian rule applicable. Suppose the defendant drives his car into a tree at the side of the road instead of another car, would his guest have a submissible humanitarian case on the theory that the driver could have stopped or swerved after he was moving toward the tree and failed to do so ? I think a position of peril from the vehicle operated by the defendant (not danger to a passenger from driving the car against another object) is essential to the applicability of the humanitarian rule and I do not think this rule can properly be extended to cases of guests riding in a car which is driven into a collision with another car or object, because I would classify such conduct as primary negligence. In this case, plaintiff’s theory of peril was peril into which he was being taken by the active negligence of defendant Hays in driving his car into collision with another car. Such peril was being created by the driver as he moved toward the other car. It is my view that it is primary and not humanitarian negligence thus to take another person into such peril. See McClanahan v. *601St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, in which we overruled cases departing from the true principles of the humanitarian rule. Even that peril of plaintiff did not entirely depend upon the acts of defendant Hays, because it could have been eliminated by action of the driver of the other car, and so was peril partly due to an instrumentality that defendant did not control.
It is true that in McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135, a guest case was submitted on humanitarian negligence but no contention was made that the humanitarian rule was inapplicable. Therefore, as in this case, there was no ruling on its applicability. Likewise, in the two Dixon cases, Downing v. Dixon, Mo.Sup., 313 S.W.2d 644, and Downing v. Dixon, Mo.App., 314 S.W.2d 927, it was considered unnecessary to pass on the applicability of the humanitarian rule in such a situation, because of the. results reached in those cases. In Thompson v. Gipson, Mo.Sup., 277 S.W.2d 527, 532, we indicated the view that the driver’s negligence toward a guest was primary rather than humanitarian negligence. I think that is the correct view of such a situation.
It seems likely that there was primary negligence in this case which commenced before reaching the last point at which it would have been possible for defendant Hays to have slackened speed and swerved his car before reaching the place of collision; but I do not think that such primary negligence can be changed to humanitarian negligence, under such circumstances, for the reasons hereinabove stated. While the principles for determining defendant’s negligence after reaching such point (if plaintiff wants it so limited) may be similar to those considered in determining negligence under the humanitarian rule (ability to stop short of collision, slacken speed or swerve and failure to do so), nevertheless plaintiff could not have been in a position of imminent peril from the car defendant Hays was driving, and that prevents the applicability of a humanitarian submission in my opinion. Furthermore, in a case like this, where there is no claim of contributory negligence on the part of the guest, it is difficult to see what purpose could be served by a humanitarian submission.