I dissent from the principal opinion, but since I am unable to agree with much of what is said in the dissenting opinion of GANTT, J., I write this separate dissenting opinion. As a basis therefor it seems necessary to consider briefly the history and nature of the humanitarian doctrine as now enforced in this State.
The whole last chance theory, as a separate doctrine, is less than a hundred years old, its origin being generally credited to Davies v. Mann, 10 M. M. 546, 152 Eng. Reprint, 588, 19 Eng. Rul. Cas. 190, decided in 1842, where the defendant was held liable for damages occasioned by his negligently driving his wagon against the plaintiff's donkey, which the plaintiff had negligently left fettered in the public road. The first Missouri case on the subject seems to be Huelsenkamp v. Citizens' Ry. Co.,37 Mo. 537, 552, decided in 1866. That case was ruled purely on the last chance or proximate cause theory. It cites Davies v. Mann, supra, and quotes the following from a Vermont case: "Where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. . . . So where the negligence of the plaintiff is proximate, and that of the defendant remote or consisting in some other matter than what occurred at the time of the injury, in such case no action can be sustained, for the reason that the immediate cause was the act of the plaintiff himself. . . . On the other hand, when the negligence of the defendant is proximate, and that of the plaintiff remote, the action can then well be sustained, although the plaintiff is not entirely without fault."
Many decisions followed along and the doctrine was expanded rapidly. Its application was not limited to railroads and street railways, but its development clearly was influenced by the fact that these transportation agencies operated "ponderous, death dealing machines" over the highways of the State and owed a very high degree of care to passengers. [See 46 Am. Law Review, 381, 386.] It was said in Murphy v. Wabash Railroad Co., 228 Mo. 56, 80, 128 S.W. 481, 485, decided in 1910, that some of our earlier Missouri cases *Page 897 were founded on the doctrine of proximate and remote cause, some on the theory of comparative negligence, and some on the idea that the failure of the defendant to save the plaintiff from the consequences of his own negligence when reasonably possible, amounts to willfulness, recklessness or wantonness; but that the later cases proceeded on principles of humanity, out of a tender regard for life and limb, and made the doctrine an exception to the law of contributory negligence.
[13] It is unnecessary, for the purposes of this case, to consider at length the origin and rationale of the rule. Discussions of those questions will be found in 45 C.J., secs. 539-545, pp. 984-995; 20 R.C.L., sec. 10, p. 14, sec. 93, p. 107, secs. 114-117, pp. 138-144; 46 Am. Law Review, p. 381; 12 Law Series, Mo. Bulletin, p. 27; 92 A.L.R., p. 47, note. Suffice it to say the law became pretty well settled in Missouri that a plaintiff could recover under the humanitarian doctrine in spite of his own contributory negligence when he was in a position of imminent peril and oblivious thereof or unable to extricatehimself; and the defendant knew, or in the exercise of reasonable care ought to have known, of such peril in time to have averted the injury by the exercise of reasonable care with the means at hand, without reasonable hazard to himself, his property, or others. The requirement that the plaintiff be oblivious of his peril or unable to extricate himself was made because the law did not go so far as to excuse his contributory negligence when he knew of his peril and had it in his power to escape but nevertheless permitted the defendant negligently to injure him. The plaintiff "had no right to race with death that way," said the Laun case cited below. [Kinlen v. Met. St. Ry. Co., 216 Mo. 145, 164, 115 S.W. 523, 530; Laun v. St. L.-S.F. Railroad Co., 216 Mo. 563, 580, 116 S.W. 553, 557; Pope v. Wabash Railroad Co., 242 Mo. 232, 239, 146 S.W. 790, 792; Reeves v. K.C., St. L. C. Railroad Co., 251 Mo. 169, 177, 158 S.W. 2, 4; State ex rel. St. L.-S.F. Ry. Co. v. Reynolds, 289 Mo. 479, 492,233 S.W. 219, 223; Alexander v. St. L.-S.F. Ry. Co., 289 Mo. 599, 618, 233 S.W. 44, 48; Butler v. United Rys. Co., 293 Mo. 259, 268, 238 S.W. 1077, 1080; Hammond v. Emery-Bird-Thayer Dry Goods Co. (Mo. Div. 1), 240 S.W. 170, 174; Karte v. Brockman Mfg. Co. (Mo. Div. 1), 247 S.W. 417, 423 (5); Wenzel v. Busch (Mo. Div. 1), 259 S.W. 767, 770 (4).]
[14] But the question frequently came up whether it was incumbent on the plaintiff to plead his obliviousness or inability to extricate himself. It was held by the Kansas City Court of Appeals in Knapp v. Dunham, 195 S.W. 1062, that such allegations must appear in the petition. In 1922, Division One of this court in the Karte case, supra, 247 S.W. l.c. 423, ruled to the contrary — on the theory that if the plaintiff knew of his peril and could extricate himself, his cause of action would be defeated by his own contributory negligence; and that a plaintiff was not required to negative his own contributory *Page 898 negligence in his petition by pleading a lack of such knowledge or ability to escape. The same was held in the Wenzel case, supra (259 S.W. l.c. 770). These parts of the opinions in the Karte and Wenzel cases are quoted in the principal opinion in the instant case. The Wenzel case was decided in June, 1923, and a rehearing denied in March, 1924.
The same question was raised in Banks v. Morris Co.,302 Mo. 254, 268, 257 S.W. 482, 485, decided by this court en banc in January, 1924. This decision said the question was one of first impression in this State, evidently overlooking the Karte and Wenzel cases. However it ruled, as they had, that obliviousness and inextricability need not be pleaded by the plaintiff — but for a vastly different reason. Whereas the Karte and Wenzel cases conceded these facts were essential, but held their absence must be urged as an affirmative defense, the Banks-Morris case declared the basic fact under the humanitarian doctrine is the plaintiff's imminent peril; and without noticing or overruling the long line of decisions supra advanced the new theory that itis immaterial what causes the peril, even though it be theplaintiff's own sheer hardihood or recklessness.
The fact of obliviousness, said the Banks-Morris decision, is merely subsidiary evidence in some instances tending to establish the ultimate fact of imminent peril, which latter alone must be pleaded by the plaintiff in his petition. There was a separate concurring opinion by WHITE, J., joined in by DAVID E. BLAIR, J., which hedged on the principal opinion to the extent of suggesting that the plaintiff ought not to be permitted to recover under the humanitarian doctrine when he gets hurt on purpose, as in an effort to commit suicide or to collect insurance, but even this reservation was not concurred in by the five other judges.
This Banks-Morris case has become the leading decision in Missouri on the humanitarian doctrine, though occasionally there has been a reversion to the formula of prior decisions as in Phillips v. Henson, 326 Mo. 282, 289, 30 S.W.2d 1065, 1067, decided in 1930, where Division One of this court said: "Defendant owed plaintiff no duty under the humanitarian rule until he saw or by the exercise of the highest degree of care could have seen him in a position of peril and either oblivious thereto or unable to extricate himself." And an examination of our cases will show that in many instances plaintiffs have since continued from choice to plead, prove and ask instructions on the theory that they were oblivious of peril or unable to extricate themselves, thereby avoiding the harsh rule of the Banks-Morris case, and recognizing the common sense and natural justice of the doctrine that a plaintiff ought not to be permitted to recover damages for self-invited personal injuries. In this way they have made a stronger appeal to juries. *Page 899
Further expanding the doctrine, our courts have begun to depart from the rule that the plaintiff must be in a position of imminent peril to recover thereunder, and to hold that if he wasentering or going into such position he could maintain his action, the other factual elements of the doctrine being proven to exist. One of the first cases of this kind was Boyd v. Wabash Western Ry. Co., 105 Mo. 371, 376, 16 S.W. 909, 910, where the jury were instructed that if the trainmen "saw Boyd in danger, or, by the exercise of reasonable care, prudence and watchfulness on their part, might have seen Boyd going into peril, under circumstances showing that he did not observe the near approach of the train, and the danger to which he was exposing himself," etc., then the plaintiff could recover. But it should be noted that this instruction coupled the statement about the deceased's going into peril with the further hypothesis that he was oblivious of his peril at the time, thus clearly making his position one of imminent peril.
Several recent cases, however, in declaring the doctrine operative in similar circumstances have not annexed the foregoing qualification: Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 956,74 S.W.2d 600, 603; Iman v. Freund Bread Co., 332 Mo. 461, 467, 58 S.W.2d 477, 480; Allen v. Kessler (Mo. Div. 1), 64 S.W.2d 630, 632 (1). In Montague v. M. K. Interurban Ry. Co., 305 Mo. 269, 283, 264 S.W. 813, 817, an instruction was approved, which used the even broader phrase "approaching a place of imminent peril." And in the instant case the principal opinion upholds an instruction authorizing a recovery by plaintiff (so far as concerns the point here under discussion) if "at and prior to the collision" the plaintiff was "approaching and in a position of imminent peril." SHAIN, P.J., of the Kansas City Court of Appeals in a recent decision criticized such instructions as constituting a roving commission unless limited by a further requirement that the jury find the injured party also was oblivious of the threatening danger. [Lakin v. Chicago, R.I. P. Ry. Co., 78 S.W.2d 481, 485.]
[15] The humanitarian doctrine has been made more severe of late years in another respect that widely affects the people at large in motor vehicle cases. The use of automobiles has become universal. In 1921 a statute was enacted, Section 7775, Revised Statutes 1929 (Mo. Stat. Ann., p. 5197), requiring the operators of motor vehicles to exercise the highest degree of care in driving the same on the highways of this State. This requirement has been incorporated in our humanitarian doctrine. [Gude v. Weick Undertaking Co., 322 Mo. 778, 16 S.W.2d 59.] So now under the Banks-Morris case, to put a concrete illustration, if A and B, both driving automobiles on the public highway, collide, and A brings a suit under the humanitarian doctrine, he can recover damages from B on the bald admission that notwithstanding his own statutory duty to use the *Page 900 highest degree of care, nevertheless he recklessly tried to pass in front of B's car though he saw B coming, knew of the danger, and could have avoided the collision. And this is true even though B was only guilty of the comparatively innocent dereliction of failing to see A in or approaching a position of imminent peril and thereafter to avert the casualty if, in the opinion of the jury, B could by exercising the highest degree of care have seen and acted in time to save A. We have gone to such lengths in expanding our so-called humanitarian or last chance doctrine that it is now sometimes facetiously referred to by lawyers from other jurisdictions as the "no chance doctrine," from the defendant's standpoint.
But instead of being a "no chance" doctrine it really is a "double chance" doctrine; for under it the adversary parties can recover against each other for the same casualty. It is not a mere question of which one gets his suit filed first. If two automobiles, street cars or trains of different ownership collide, in the action and cross-action following, each party may admit that he saw the other coming, knew of the danger, and could have avoided the collision, and still each can recover his damage from the other, if that other in the exercise of due care could have averted it. Each, in his action against the other is excused from the consequences of his own negligence proximately causing the collision, but in his defense against the cross-action of the other he is liable for that self-same negligence. Even under the old humanitarian doctrine requiring the complaining party to be either oblivious or unable to extricate himself, no damages could be awarded to either party on such evidence, and if we had the true last chance doctrine in this State such incongruities could not result at all.
[16] By necessary effect the Banks-Morris case has made a change in the law which is at war with the conclusion it announces. It holds that under the precepts of humanity and natural justice the humanitarian doctrine makes the plaintiff's imminent peril its chief basic fact; that is to say, the plaintiff must have been in actual imminent peril to recover thereunder. The decision cited in support of that pronouncement is State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 106,253 S.W. 1014, 1019; and that was the law in 1923 when the Vulgamott case was written, because then a plaintiff could not recover under the doctrine unless he was oblivious or unable to extricate himself. But these requirements were swept away by the Banks-Morris case and the rule established that a plaintiff's recovery will not be defeated whatever the cause of his "peril," be it even his own sheer hardihood or recklessness.
In other words, with knowledge of the danger and present ability to extricate himself the plaintiff can continue on into peril and collect damages if he gets hurt, provided the defendant in the exercise of due care could and should have seen his apparent peril in time to have saved him. But in such circumstances a normal person is *Page 901 not in actual imminent peril practically so long as he can escape unaided. How close he may go to the source of the peril without cause for alarm is shown by a number of cases holding that when proceeding at an ordinary gait he does not enter the danger zone until he lacks only a step or two of coming within range of an oncoming street car or train; or he may even remain in front of it until it is drawing close to him. And in either case the defendant may assume he will get out of the way, and will not be held liable for his injury unless there was something to indicate he would not follow the instincts of self-preservation and avoid injury. [Keele v. A., T. S.F. Ry. Co., 258 Mo. 62, 79, 167 S.W. 433, 438; Clark v. A., T. S.F. Ry. Co., 319 Mo. 865, 879, 6 S.W.2d 954, 960; McGowan v. Wells, 324 Mo. 652, 664, 24 S.W.2d 633, 638; Cavey v. St. J. Ry., L., H. P. Co., 331 Mo. 882, 885, 55 S.W.2d 438, 439; Worth v. St. L.-S.F. Ry. Co., 334 Mo. 1025, 1029, 68 S.W.2d 672, 673.]
This means, of course, that a person who is oblivious or intending to go into danger, but without giving indication of it, may be in actual imminent peril though not appearing to be. And yet, if his peril does not become apparent until too late to save him he cannot recover. On the other hand, it is equally true that a person may appear to be in imminent peril when he actually is not, as where he seems unable to extricate himself, or oblivious, or intent upon going into peril, but in fact is aware of the danger and ready, willing and able to avoid it. Cases of this sort are rare because ordinarily where one can escape one will do so and no lawsuit follows. But it is entirely conceivable that in such circumstances a last minute slip or rash misjudgment of timing or distance might result in injury. Under the Banks-Morris case, the rule is that the defendant must act whenever he sees or ought to see the plaintiff in imminent peril for any reason. And he must act upon appearances — upon the first appearance of such danger. If he fails to do so he is liable. [Burke v. Pappas,316 Mo. 1235, 1244, 293 S.W. 142, 146; Gray v. Columbia Terminals Co., 331 Mo. 73, 81, 52 S.W.2d 809, 812; Martin v. Fehse,331 Mo. 861, 866, 55 S.W.2d 440, 441; Womack v. Mo. Pac. Railroad Co., 337 Mo. 1160, 1167, 88 S.W.2d 368, 371.]
From all this it follows that the basic fact of the humanitarian doctrine under the present day rule is not the plaintiff's actual imminent peril; it is his apparent peril. Actualities have nothing to do with it. The first element in the formula of the Banks-Morris case, that the plaintiff be in a position of imminent peril, is simply the empty shell of the former but now discarded requirement that the plaintiff be oblivious of his peril or unable to extricate himself. Our law exacts absolutely nothing of the plaintiff. In my opinion this is not in accord either with natural justice or humanistic precepts. The primary obligation of every human being under all laws, Divine, secular and biological, is to protect himself from needless injury or *Page 902 death. For us to say to the citizens of this State: "Go ahead, rush into danger needlessly, knowingly and recklessly, and if you get hurt the law will give you damages even though the other party was without guilty knowledge or bad intent and defaulted only in failing to exercise the degree of care legally imposed upon him," — for us functuously to say this in the name ofhumanity is to profane the lofty principles we invoke.
While I have always thought the Banks-Morris case should be overruled, I have followed it as closely as any other member of this court (see McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, an extreme case) and do not now want to appear to be submitting to it with ill grace, since a majority of the court adhere to it. But still I believe it is well for us to look back and see how far we have gone in the expansion of our humanitarian doctrine, preliminary to a consideration of the instruction under discussion in this case — respondent's Instruction No. 1, which submitted the case on the theory that "at and prior to the collision" the respondent was "approaching and in a position of imminent peril."
[17] The appellant contends the instruction was erroneous in authorizing a verdict for respondent upon a finding that he wasapproaching a position of imminent peril, without requiring a further finding that he was then and there also oblivious of the threatening peril — this on the theory that so long as the respondent was only approaching a position of peril he was not actually in peril unless he was oblivious. The dissenting opinion agrees with that contention, holding that in such circumstances obliviousness is an essential element of the doctrine, and not mere subsidiary evidence as the Banks-Morris case says. I think that is true as a matter of evidence under the facts of this case, because there is no showing whatever in this record that the respondent knew of his danger and voluntarily entered into it. But I think such "approaching" instructions should not be given in any case; of that more later.
The principal opinion upholds the instruction on the theory of the Banks-Morris case that the plaintiff's imminent peril is the basic fact under the humanitarian doctrine, and that the plaintiff is not required to plead obliviousness, though it concedes (again quoting the Banks-Morris case) that the plaintiff must prove obliviousness when such proof is necessary to establish that he was in imminent peril. The opinion then proceeds to hold that since the respondent was not required to plead obliviousness the court was not required to instruct on it — in other words that the instruction need not be, in fact must not be, broader than the petition, quoting from Karte v. Brockman Mfg. Co., 247 S.W. l.c. 423, and Wenzel v. Busch, 259 S.W. l.c. 770.
The principal opinion errs in so holding. An instruction incorporating the element of obliviousness would not have ranged outside the petition, for a general allegation therein that the plaintiff was *Page 903 in imminent peril would let in any evidence tending to prove that fact. Respondent's theory was that he got in the way of the train because he was oblivious. Until he had gone so far that he could not extricate himself his obliviousness was what made his position perilous. Under the express holding of the Banks-Morris case which the principal opinion quotes, it was therefore incumbent on respondent to prove obliviousness, insofar as he sought to recover on account of the appellant's negligence while he was approaching a position of imminent peril. Then why not instruct on obliviousness if such "approaching" instructions are proper at all? It does not follow that because a plaintiff may plead two necessary evidential elements as one ultimate fact, the court can give an instruction authorizing a verdict which embodies only one of those elements (approaching imminent peril) and omits the other (obliviousness) when both facts had to exist at the same time to put the plaintiff in imminent peril.
Nor do the Karte and Wenzel cases, supra, hold otherwise, though they do say the court need not instruct on obliviousness because the plaintiff need not prove it. But that was because those cases held disproof of obliviousness was an affirmative defense. In the instant cause proof of obliviousness was a part of the respondent's case to show his "approach" was imminently perilous. The principal opinion treats the instruction as if it submitted solely the issue whether the respondent was in imminent peril, and ignores the fact that the instruction also propounded the inquiry whether at and prior to the collision he was approaching a position of imminent peril. In other words, the principal opinion does not apply the same rule to both appellant and respondent. Answering the appellant's complaint that the instruction should have required the jury to find the respondent was oblivious, the opinion says it was only necessary for it to submit the ultimate fact of imminent peril; and yet the instruction does not similarly restrict the respondent's recovery to the ultimate fact of peril, but authorizes a verdict for him if he was approaching and in such peril.
[18] I further agree with the dissenting opinion of GANTT, J., that the instruction is duplicitous and confusing, and should not have been given for that reason. It submits the proposition that at and prior to the collision the respondent was approaching and in a position of imminent peril. He could not have beenapproaching a position of imminent peril at the time of the collision; neither could he have been approaching imminent peril and in imminent peril at the same time. But if the instruction means anything it undoubtedly conveys the idea that the appellant owed him a duty while he was approaching imminent peril, and that is not the law under the Banks-Morris case. The criticisms of the instruction made in the preceding paragraphs are, therefore, well lodged. *Page 904
The dissenting opinion concedes, however, that the instruction would have been proper if it had been clearly worded and had submitted the hypothesis that the respondent was approaching a position of imminent peril and at the time was oblivious of his peril. To this I do not agree. I think such instructions are prejudicially misleading. The injured party might beapproaching imminent peril and oblivious of it for a long time or distance before he got in either actual or apparent imminent peril. The word "approaching" as used in that connection is too broad and vague. If the instruction had submitted the question whether the respondent was unknowingly "entering" or "about to go into" a position of imminent peril from which he could not escape unaided, it would have been less confusing. Such instructions have been upheld. Several cases so ruling are cited and discussed in State ex rel. Himmelsbach v. Becker, 337 Mo. 341,85 S.W.2d 420, a banc decision written by the learned author of the principal opinion in this case. But it is to be noted that the Himmelsbach case criticizes instructions of this character, saying: "We believe that instructions which omit such phrases as `approaching imminent peril' or `entering into a position of peril' would not tend to confuse the jury."
But beyond all that is the fact that there are no degrees of imminent peril under the humanitarian doctrine. The plaintiff is either in peril or he is not. The defendant must act on the first appearance of imminent danger. The zone of peril may be enlarged by the plaintiff's obliviousness, fixed intent, or any other fact carrying him to injury if he continues, but that merely means he is in imminent peril that much sooner. If he is going into imminent peril and is oblivious of it because of obstructed view, blindness, deafness or inattention, or if he is dominated by a fixed intent, he is in danger at a given time and place as much as if he were physically unable to extricate himself. But in either case action by the defendant would be equally necessary to save him. So it is illogical as well as misleading to split up the question and require the jury to find whether the plaintiff was approaching or going into imminent peril, and oblivious or mentally deadlocked at the time. The sole issue hypothesized upon the evidence should be whether the plaintiff was in actual (or as I contend, apparent) imminent peril and the defendant knew or should have known it in time to save him.
In its discussion of such "approaching" instructions the dissenting opinion draws a distinction between a danger zone and a position of imminent peril, saying the former embraces that territory within which the plaintiff could escape the threatening danger by his own efforts if he knew of it, whereas the latter is a position of peril from which he does not have time or ability to escape solely by his own efforts. In other words, so long as he can save himself he is only in a danger zone; but when he cannot extricate himself he is in imminent peril. *Page 905
This is contrary to all our decisions up to now. True enough the expression danger zone has been more frequently used objectively as referring to the area within which the plaintiff's peril could and should have been known and acted upon by the defendant; and the expression position of imminent peril is usually employed subjectively, as signifying the peril itself. But it has never been said before that a plaintiff is not in imminent peril unless he cannot extricate himself. For general purposes the two expressions have always been regarded as synonymous. [Keele v. A., T. S.F. Ry. Co., 258 Mo. l.c. 79, 167 S.W. l.c. 438; State ex rel. Himmelsbach v. Becker, 337 Mo. l.c. 347, 85 S.W.2d l.c. 423.] There are probably scores of cases holding a plaintiff was in imminent peril because of his obliviousness, which of course means he could have escaped by his own efforts if he had known of the danger. [For instance, see Mayfield v. K.C. So. Ry. Co., 337 Mo. 79, 85, 85 S.W.2d 116, 120; Borgstede v. Waldbauer, 337 Mo. 1205, 1213,88 S.W.2d 373, 376.] And as I have already attempted to show, the fact of plaintiff's apparent peril alone is enough to put the defendant on notice and guard; that is to say, when he is in the danger zone he is in imminent peril so far as the defendant's duty is concerned.
The dissenting opinion refers to Sections 479 and 480 of the Restatement of the Law of Torts as supporting the distinction it draws between being in a danger zone and being in a position of imminent peril. The two sections do not make a distinction, but they proceed on the last clear chance theory and not under our humanitarian doctrine, which permits a plaintiff to recover for an avoidable self-invited injury although the defendant had no actual knowledge of his situation. Section 479 of the Restatement applies only when the plaintiff was physically unable to extricate himself, and the defendant knew and realized or in the exercise of due vigilance should have known and realized the plaintiff's helpless peril, and thereafter failed to exercise due care and competence to save him when he might have done so. Section 480 of the Restatement applies when the plaintiff could have saved himself and the defendant knew of the plaintiff's situation and realized or should have realized the peril he was in, but negligently failed to take steps which would have averted the injury.
I maintain that we have already gone too far with our humanitarian doctrine in this State and that we ought not to go still further, as is proposed in the principal opinion in this case, by holding a defendant liable merely because he ought to have seen the plaintiff at and prior to the injury approaching and in a position of imminent peril (and negligently failed thereafter to avert the injury when he could have done so.) *Page 906