ON MOTION FOR REHEARING. Defendants' motion for rehearing states that the opinion herein "adds to the law of sole cause instructions a new, unheard *Page 1012 of and additional requirement that the instruction must hypothesize facts which negate defendants' negligence, as well as facts tending to prove negligence on the part of the driver." Defendants say that this is in conflict with the opinion of the Court en Banc in State ex rel. Snider v. Shain, 345 Mo. 950,137 S.W.2d 527. Defendants evidently overlooked the following statement therein specifying the necessity of this very requirement:
"The Borgstede (Borgstede v. Waldbauer, 337 Mo. 1205,88 S.W.2d 373) instruction, as amended, would submit to the jury the specific facts which would show lack of negligence on the partof the defendant; that is, it would require the jury to find that defendant, after he saw or should have seen the plaintiff in peril, did not have time in the exercise of the highest degree of care to swerve his car, slacken speed, sound a warning, etc. Defendant's Instruction F (refused for that very reason) did notrequire the jury to make such a specific finding, but merelyrequired them to make the abstract finding that defendant was at all times in the exercise of the highest degree of care and was not in any manner negligent." [137 S.W.2d l.c. 531.]
Thus this Court en Banc upheld the Court of Appeals' refusal of an instruction for the same defect we pointed out in defendants' submission of excessive speed in this case. Defendants also say that this so-called new requirement would overrule the opinion of Division 2, in Doherty v. St. Louis Butter Co., 339 Mo. 996,98 S.W.2d 742. A reading of the instruction in that case will show that it did hypothesize facts "which would show lack of negligence on the part of the defendant;" namely, that "plaintiffwalked or ran against the side of the truck mentioned in the evidence near the left rear fender," which was concededly being driven forward. (Of course, if defendant had been backing this truck, a sole cause situation might not be thus presented.) The hypothesized facts necessarily showed a position of peril arising after defendant's driver had passed plaintiff in a place of safety and, therefore, did negate defendant's negligence. The Court said, in discussing this instruction:
"Should a defendant, under the humanitarian rule, be restricted to disprove one or more of the facts upon which that rule rests? Or may he affirmatively show a state of facts which, if true,would place the entire blame for the injury upon the plaintiff, and by an appropriate instruction submit that question to the jury? We think the latter rule correct. . . . The defendant merely presented for consideration of the jury the facts relied upon for its defense. If the facts were as presented by the defendant, plaintiff was not entitled to recover under the humanitarian doctrine." (Of course, this was true because such facts "would show lack of negligence on the part of the defendant" as required in State ex rel. Snider v. Shain, supra.) *Page 1013
How could the defendant "show a state of facts which would place the entire blame for the injury upon the plaintiff," or a third party, unless such facts did negate defendant's negligence? Of course as an abstract legal proposition, it is correct to say that a plaintiff cannot recover from the defendant if his injuries resulted from his own sole negligence or the sole negligence of a third party who was the driver of the car in which he was riding. However, the mere statement of such an abstract legal proposition does not make a proper jury instruction. As this court said of such an instruction, "the cryptic way in which this information was conveyed to the jury was calculated not to enlighten, but to confuse." [Boland v. St. L.-S.F. Ry. Co. (Mo.), 284 S.W. 141; see also discussion of such an instruction in Peppers v. St. L.-S.F. Ry. Co., 316 Mo. 1104,295 S.W. 757; Millhouser v. Kansas City Public Service Co.,331 Mo. 933, 55 S.W.2d 673.] This is because jurors are not learned in the law, and it is the function of a jury to decide fact issues; they should not be asked to pass upon questions of law. A jury can only undertand how to reach a correct general verdict by being told what facts must be found to reach each possible result under the evidence. In Watts v. Moussette,337 Mo. 533, 85 S.W.2d 487, this court reached the conclusion "that a defendant in a negligence case, who invokes as a defense the negligence of a third party as being the sole cause of the injury complained of, should, in the instruction submitting that issue, submit the specific negligence of such third party which the evidence tends to support, whether such defendant has pleaded the specific negligence of the third party or has answered by a general denial as to the negligence charged against him." Of course, this can only mean that facts shall be hypothesized which not only show the negligence relied on as sole negligence but also show that such negligence was the sole cause, and not merely a concurring cause. [See, also, Reiling v. Russell, 345 Mo. 517,134 S.W.2d 33; McGrath v. Meyers, 341 Mo. 412,107 S.W.2d 792.] Before a defendant can be entitled to a sole cause instruction, he must have evidence which tends to prove facts that will sustain it. [Crews v. Kansas City Pub. Serv. Co.,341 Mo. 1090, 111 S.W.2d 54.] It must follow that to properly submit a sole cause issue he must hypothesize such facts. Therefore, his instruction must hypothesize facts which show he was not guilty of any negligence, and that plaintiff was, in order to show a situation in which a finding of sole cause could be made. Clearly, therefore, the opinion herein makes no new requirement for a sole cause instruction but only requires facts to be hypothesized which would be sufficient to show a situation in which the negligence of the third party (the driver with whom plaintiff rode) could be sole cause (instead of merely concurring) negligence.
Defendants also erroneously construe the opinion to mean that excessive speed could never be the sole cause of a collision which *Page 1014 occurred on a highway. Defendants say: "Suppose that plaintiff's car was going 75 miles an hour. In that event Mild could not have gotten off the highway." Of course, since there was no such case as that before us, it would be obiter dictum to make a ruling about such a hypothetical case. Our opinion only intended to rule the effect of the facts shown by the evidence in this case. We held that, under the evidence most favorable to defendants (that Mild had driven his truck completely off the highway before it was struck), there was a situation shown which would warrant a finding that he was not negligent and that the driver of the other car was guilty of negligence which was the sole cause of the collision. We also held (and we reaffirm that holding) that merely to require a finding of negligent excessive speed, without any finding of facts as to where defendants' truck was when the collision occurred, was not sufficient because this authorized a verdict for defendants even if both drivers were negligent. In other words, the situation, which the jury was required to find, was so generally stated that it would include a concurring cause (as a reason for finding for defendants) as well as sole cause. Therefore, we could not say that the jury found a sole cause situation unless we would assume that the jury could correctly apply the law of sole cause to the evidence without any guidance as to specific facts required to be found to reach a correct result. If we would make such an assumption as to a sole cause defense we might just as well give juries only abstract general statements of law in any kind of defense, or for that matter in the submission of a plaintiff's case. The whole law of instructions is otherwise in this State.
The motion for rehearing is overruled. Bradley and Dalton,CC., concur.