(dissenting).
I cannot agree that the doctrine of humanitarian negligence should be extended and applied to the facts of this case. The rules of primary negligence as well as the humanitarian doctrine involve “precepts of humanity and natural justice”. The last clear chance or humanitarian doctrine was evolved to permit a recovery where the remedy on the basis of primary negligence was inadequate; the emphasis was shifted to proximate cause, or the last clear chance to avoid the casualty and then the humanitarian rule. In its very nature, the humanitarian rule was developed later and as a supplement to primary negligence. See Davies v. Mann, 10 M.N.W. 546, 152 Reprint 588, 19 E.R.C. 190.
As recognized in the majority opinion, the doctrine involves “nice distinctions, often of a technical nature, and the courts should be wary in extending its application.” 65 C.J.S. Negligence § 136, p. 759. *13This statement is sound and a sufficient reason for not extending the doctrine to a case of this type where the result most likely would be added confusion in an area that needs simplification. The niceties of “imminent peril” should not be inflicted upon a jury needlessly, nor for that matter upon the court and counsel. Plaintiff’s verdict-directing instruction demonstrates this. Among other unnecessary things, it requires the jury to find that the defendant “saw, or by the exercise of the highest degree of care could have seen * * * the Plaintiff in said position of imminent peril”. The jury must have been mystified by this when the plaintiff was on the seat beside the defendant at all times and they were both in the same amount of peril. Nevertheless, the jury had to determine when the peril became imminent and if thereafter the defendant could have avoided hitting the other car when the case could have been submitted on the unadorned primary negligence issue of failure to stop or swerve the automobile.
I agree with the reasoning of Judge Hyde in his separate concurring opinion in Lay v. McGrane, Mo., 331 S.W.2d 592, 600, and adopt it as a part of this dissent.
The cases from other states, cited and discussed in the majority opinion, are not persuasive on the facts of this case. Generally, they are ones where the passenger was riding on the running board, fender, or other exposed portions of the motor vehicle so that the passenger was in imminent peril of being injured by the operation of the vehicle alone. First, these cases involve elements of willful or wanton conduct on the defendant’s part which ordinarily permits a recovery in spite of the contributory negligence of the plaintiff. 65 C.J.S. Negligence § 131, p. 751, and § 136, p. 759(51).
Then, too, the court decisions of this state indicate a recovery may be had under the humanitarian doctrine where the plaintiff’s peril and injury result from the defendant’s operation of the instrumentality under his control independently of other agencies or causes. See Stewart v. Missouri Pac. R. Co., 308 Mo. 383, 272 S.W. 694, 695 [1]; Baldwin v. Wells, Mo.App., 27 S.W.2d 435, 436[5]. But this rule would not permit the application of the humanitarian rule to the facts of this case. We are not justified in putting all guest-passenger and host-driver cases in the same category. There may be unusual situations where the rule should properly be applied, but this is not one of them.
An attempt to fit the facts of this case into the component parts of a humanitarian case as listed in Banks v. Morris & Co. produces more differences and incongruities than similarities. As stated in the Lay case, the “plaintiff is never in a position of imminent peril from the car defendant is operating.”
This is not intended to be a complete statement of the reasons for not applying the humanitarian doctrine in this situation, but to me they appear sufficient. If we take this turn, I fear we will go further into the wilderness of our humanitarian rule. Therefore, I dissent.