FINCH, Judge.
Plaintiff sued for $25,000 damages on account of personal injuries alleged to have been sustained as a result of an automobile collision. The jury returned a verdict for $15,000, but the trial court sustained defendant’s motion for a new trial on the ground that plaintiff’s verdict-directing Instruction No. 3 was erroneous. On appeal, the Kansas City Court of Appeals reversed and remanded with directions to reinstate the judgment for plaintiff in accordance with the jury verdict. On application of defendant Walters, this court ordered the appeal transferred. An opinion was written herein but the court granted a rehearing and this opinion is written following argument on the rehearing.
The case was submitted to the jury on the so-called rear-end collision doctrine. All evidence on the issue of liability was adduced by the plaintiff. Except for a medical witness, defendant stood on his motion for a directed verdict.
The accident occurred on May 25, 1962, between 4:30 and 5.:00 p. m., on U.S. Highway 36 at a point 1.7 miles west of its junction with Missouri State Highway 139. The pavement was 20 feet wide with a bituminous surface. The day was bright and clear and the pavement dry. At the place where the accident occurred, a “country road” forms a T with U.S. 36 and extends north a sufficient distance to provide access to farmland in that area. The plaintiff and her husband operated a service station and cafe on the north side of U.S. 36 a little less than a half mile west of this side road. Eastward from their place of business, U.S. 36 is straight and downgrade for about a half mile and beyond that it is level for another half mile. The plaintiff’s husband cultivated some farmland located on the country road north of U.S. 36.
The plaintiff, her husband, and a highway patrolman were the witnesses on the issue of liability. The evidence tended to establish that the plaintiff, driving a 1954 Ford Ranch Wagon, left the place of business to drive her husband to the field where he was conducting his farming opera[104]*104tion. Plaintiff drove in the eastbound lane (the south half of U.S. 36) at a speed of 35 to 40 miles per hour. When she was about halfway between the filling station and the entrance to the country road, she looked into her rear-view mirror for the first time and saw defendant’s automobile following some distance behind in the eastbound lane. When she was between 400 and 500 feet west of the country road, she put on her left blinker light to signal the left turn she intended to make and started to slow down. Another automobile was approaching from the east and the plaintiff slowed further to permit this car to pass before she made the left turn. Sometime before reaching the country road (she was unable to fix the distance) she again looked into the rear-vision mirror and saw the defendant’s car behind her, although closer. The defendant was still in the eastbound lane and there was no indication that he intended to pass the Clevenger automobile.
After the westbound automobile passed, plaintiff, then going 5 to 10 miles per hour, started to turn left (north) onto the country road. At that time she was approximately even with the west edge of the country road onto which she was going to turn. When plaintiff’s automobile, headed in a somewhat northeasterly direction, had reached a position with at least a portion of its rear end still a foot or two south of the center line of U.S. 36 and the front end extending a little over the north edge of the pavement and onto the gravel of the country road, it was struck by defendant’s approaching car. No horn was heard by plaintiff or her husband, but they did hear the screech of brakes before the collision.
Debris consisting of dirt, glass and metal was found to the north of the center line of U.S. 36 and just to the west of the T intersection with the country road onto which plaintiff was turning. Skid marks, 174 feet in length, started at a point in the east lane of traffic (south half of Highway 36) and led to defendant’s car. Both skid marks crossed the center line and went over into the north half of the pavement. A little more than half of the skid marks were on the south side of the center line before they crossed into the westbound lane of traffic. Defendant’s automobile came to rest headed southeast in the north half of U.S. 36 at its intersection with the country road. Plaintiff’s car, after the accident, was on the north shoulder of U.S. 36 and about 50 feet east of the country road. It was knocked east by the impact and started down the embankment toward a utility pole, but plaintiff’s husband grabbed the wheel, pulled the car back on the shoulder, got his foot on the brake and brought the car to a stop.
Plaintiff testified that defendant’s “right front end hit our left rear driver’s side and knocked a hole in the middle of the car and the bumper was bowed up, and it knocked the big taillight, broke that red light out, and the fender was bent into the tire.” Trooper Conyers, who was called to the scene after the accident, described the damage to plaintiff’s car as consisting of “the left rear fender, the taillight, bumper and rear door bashed in.” He said the defendant’s automobile had “the right front end, the grille and the radiator bashed in.” Plaintiff’s husband testified as to the damage to both vehicles. He stated that the front end of defendant’s car collided with the rear end of plaintiff’s station wagon, although he did not actually see defendant’s automobile until after the collision. Defendant did not testify, but Patrolman Conyers, in testifying for plaintiff, stated that defendant told him, “I was going east and started to pass this car and she turned left and I couldn’t stop.”
The trial court, in granting the defendant a new trial, stated that “it was error to give Instruction No. 3.” In reviewing this question, it should be kept in mind that when a motion for new trial is sustained, an appellate court is more liberal in upholding the action of the trial court in granting a new trial than when the motion [105]*105is denied. Tate v. Giunta, Mo., 413 S.W.2d 200 [4], “This rule of liberality applies even when a new trial is granted for error in an instruction.” Coit v. Bentz, Mo., 348 S.W.2d 941, 946.
Instruction No. 3 was as follows:
“You are instructed that under the law of Missouri it is the duty of one driving and operating a motor vehicle on the highways of this state to at all times use and exercise the highest degree of care in the driving, management and operation of the motor vehicle.
“You are further instructed that if you find and believe from the evidence on May 25, 1962 plaintiff Clevenger was proceeding in an easterly direction on Highway No.
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FINCH, Judge.
Plaintiff sued for $25,000 damages on account of personal injuries alleged to have been sustained as a result of an automobile collision. The jury returned a verdict for $15,000, but the trial court sustained defendant’s motion for a new trial on the ground that plaintiff’s verdict-directing Instruction No. 3 was erroneous. On appeal, the Kansas City Court of Appeals reversed and remanded with directions to reinstate the judgment for plaintiff in accordance with the jury verdict. On application of defendant Walters, this court ordered the appeal transferred. An opinion was written herein but the court granted a rehearing and this opinion is written following argument on the rehearing.
The case was submitted to the jury on the so-called rear-end collision doctrine. All evidence on the issue of liability was adduced by the plaintiff. Except for a medical witness, defendant stood on his motion for a directed verdict.
The accident occurred on May 25, 1962, between 4:30 and 5.:00 p. m., on U.S. Highway 36 at a point 1.7 miles west of its junction with Missouri State Highway 139. The pavement was 20 feet wide with a bituminous surface. The day was bright and clear and the pavement dry. At the place where the accident occurred, a “country road” forms a T with U.S. 36 and extends north a sufficient distance to provide access to farmland in that area. The plaintiff and her husband operated a service station and cafe on the north side of U.S. 36 a little less than a half mile west of this side road. Eastward from their place of business, U.S. 36 is straight and downgrade for about a half mile and beyond that it is level for another half mile. The plaintiff’s husband cultivated some farmland located on the country road north of U.S. 36.
The plaintiff, her husband, and a highway patrolman were the witnesses on the issue of liability. The evidence tended to establish that the plaintiff, driving a 1954 Ford Ranch Wagon, left the place of business to drive her husband to the field where he was conducting his farming opera[104]*104tion. Plaintiff drove in the eastbound lane (the south half of U.S. 36) at a speed of 35 to 40 miles per hour. When she was about halfway between the filling station and the entrance to the country road, she looked into her rear-view mirror for the first time and saw defendant’s automobile following some distance behind in the eastbound lane. When she was between 400 and 500 feet west of the country road, she put on her left blinker light to signal the left turn she intended to make and started to slow down. Another automobile was approaching from the east and the plaintiff slowed further to permit this car to pass before she made the left turn. Sometime before reaching the country road (she was unable to fix the distance) she again looked into the rear-vision mirror and saw the defendant’s car behind her, although closer. The defendant was still in the eastbound lane and there was no indication that he intended to pass the Clevenger automobile.
After the westbound automobile passed, plaintiff, then going 5 to 10 miles per hour, started to turn left (north) onto the country road. At that time she was approximately even with the west edge of the country road onto which she was going to turn. When plaintiff’s automobile, headed in a somewhat northeasterly direction, had reached a position with at least a portion of its rear end still a foot or two south of the center line of U.S. 36 and the front end extending a little over the north edge of the pavement and onto the gravel of the country road, it was struck by defendant’s approaching car. No horn was heard by plaintiff or her husband, but they did hear the screech of brakes before the collision.
Debris consisting of dirt, glass and metal was found to the north of the center line of U.S. 36 and just to the west of the T intersection with the country road onto which plaintiff was turning. Skid marks, 174 feet in length, started at a point in the east lane of traffic (south half of Highway 36) and led to defendant’s car. Both skid marks crossed the center line and went over into the north half of the pavement. A little more than half of the skid marks were on the south side of the center line before they crossed into the westbound lane of traffic. Defendant’s automobile came to rest headed southeast in the north half of U.S. 36 at its intersection with the country road. Plaintiff’s car, after the accident, was on the north shoulder of U.S. 36 and about 50 feet east of the country road. It was knocked east by the impact and started down the embankment toward a utility pole, but plaintiff’s husband grabbed the wheel, pulled the car back on the shoulder, got his foot on the brake and brought the car to a stop.
Plaintiff testified that defendant’s “right front end hit our left rear driver’s side and knocked a hole in the middle of the car and the bumper was bowed up, and it knocked the big taillight, broke that red light out, and the fender was bent into the tire.” Trooper Conyers, who was called to the scene after the accident, described the damage to plaintiff’s car as consisting of “the left rear fender, the taillight, bumper and rear door bashed in.” He said the defendant’s automobile had “the right front end, the grille and the radiator bashed in.” Plaintiff’s husband testified as to the damage to both vehicles. He stated that the front end of defendant’s car collided with the rear end of plaintiff’s station wagon, although he did not actually see defendant’s automobile until after the collision. Defendant did not testify, but Patrolman Conyers, in testifying for plaintiff, stated that defendant told him, “I was going east and started to pass this car and she turned left and I couldn’t stop.”
The trial court, in granting the defendant a new trial, stated that “it was error to give Instruction No. 3.” In reviewing this question, it should be kept in mind that when a motion for new trial is sustained, an appellate court is more liberal in upholding the action of the trial court in granting a new trial than when the motion [105]*105is denied. Tate v. Giunta, Mo., 413 S.W.2d 200 [4], “This rule of liberality applies even when a new trial is granted for error in an instruction.” Coit v. Bentz, Mo., 348 S.W.2d 941, 946.
Instruction No. 3 was as follows:
“You are instructed that under the law of Missouri it is the duty of one driving and operating a motor vehicle on the highways of this state to at all times use and exercise the highest degree of care in the driving, management and operation of the motor vehicle.
“You are further instructed that if you find and believe from the evidence on May 25, 1962 plaintiff Clevenger was proceeding in an easterly direction on Highway No. 36 at the place mentioned in the evidence and was at all times in the exercise of the highest degree of care for her own safety and that as plaintiff proceeded eastwardly and turned to her left, or north and as the defendant Walters was operating his vehicle in an eastwardly direction and to the rear of plaintiff Clevenger’s automobile he negligently and carelessly allowed his automobile to run into and collide with the rear end of the automobile plaintiff Clevenger was operating, if you so find and as a direct result of such negligence, if any, on the part of Walters, the plaintiff Clevenger was injured, then in such circumstances, if you so find them, your verdict should be in favor of the plaintiff Clevenger and against the defendant Walters.”
It is well established that one of the fundamental requirements of the rear-end collision doctrine is that plaintiff’s vehicle, at the time of the collision, be in a place where he had a right to be. Judge Hyde, in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 918, stated it thus: “Did defendant’s driver run its truck into the rear end of plaintiff’s car while plaintiff’s car was being properly driven in the part of the highway where it should have been and was entitled to be ?” In that connection, the court, in discussing plaintiff’s verdict-directing instruction, stated as follows, 1. c. 917: “Plaintiff’s instruction authorized his recovery only if the jury found that defendant was ‘driving and operating’ its transport truck south ‘behind (plaintiff’s) pickup truck,’ while plaintiff was driving it south ‘on the west and right hand side of the pavement’ and ‘west of the center line,’ and that defendant ‘negligently caused, allowed and permitted’ its transport truck ‘to run into, strike and into collision with the rear end of the pickup truck’ of plaintiff ‘at said time and place.’ ”
In the case of Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 1. c. 269, the court, in discussing the instructions, had this to say: “Instruction G, offered by plaintiff, referred to by plaintiff as a rear end collision instruction and claimed to be authorized by our decisions in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, was not a proper instruction. This instruction (leaving out the ‘if you find’s’) submitted that ‘plaintiff was a passenger in an automobile which was being driven in an easterly direction over and along Highway 40 at the place mentioned in evidence, * * * that the defendant drove his automobile in an easterly direction over and along said Highway, into the rear of the automobile with plaintiff therein, and * * * that the defendant caused, suffered and permitted the front end of his automobile to come in contact with the rear end of the automobile with plaintiff therein, and was negligent.’ The trouble with this instruction is that it did not (as the Jones case instruction did) ‘require a finding of plaintiffs position in a place where he had the right to be, operating his car properly as required by the highest degree of care, together with his environment and other facts of the situation which showed he could not have been negligent, and then required the finding of the affirmative act by the defendant of driving its truck into that part of the highway and [106]*106against the rear end of plaintiff’s car.’ ” (Emphasis supplied.)
Again, in Snyder v. Hedges, Mo.App., 381 S.W.2d 376, 380, the court had this to say on the necessity of submitting the issue of whether plaintiff’s vehicle was in a place where it had a right to be: “But, in any application of the doctrine, it remains essential to plaintiff’s recovery for the evidence to show, and for plaintiffs verdict-directing instruction to hypothesise and require the finding of a state of facts demonstrating, that the front vehicle was in a place where it then had the right to be.” (Emphasis supplied.)
By way of contrast, Instruction No. 3 required no finding by the jury that the plaintiff, at the time of the collision, had her car at a place where she had a right to have it. The instruction makes reference to the fact that the plaintiff turned to her left or north but requires no finding as to where the vehicle was on the highway at the time it was hit, or even that it was on the highway, and it cannot be said that the instruction required a finding of plaintiff’s position in a place where she had a right to be, and consequently the trial court was correct in granting a new trial for error in that instruction. We do not deem it necessary to discuss the matter in further detail because cases now are tried under MAI instructions. This case, however, was tried before MAI instructions were required and consequently it was necessary that the instruction meet the requirements which the cases then had made with reference to instructions in rear-end collision cases. The sufficiency of the instruction cannot be determined on the basis of the MAI instruction for rear-end collision cases.
Defendant also insists that the plaintiff did not make a submissible case under the rear-end collision doctrine. We will not attempt to rule that question since we do not know just what the evidence may disclose on retrial, but in view of the fact that the case is to be retried, we feel obligated to say that on the record presently before us there is grave doubt that a sub-missible case can be made under that doctrine.
In the first place, there is a dispute between the parties as to whether the evidence shows that defendant collided with the rear end of plaintiff’s vehicle. Photographs of the plaintiff’s station wagon were made but were not introduced in evidence and are not before us. We are unable to say on the record before us that defendant did collide with the rear end of plaintiff’s vehicle. We observe, parenthetically, that not even all rear-end collisions fall within the doctrine. Todd v. Presley, Mo., 413 S.W.2d 173.
Secondly, this is not the classic case where plaintiff is proceeding directly ahead in his proper lane and defendant runs into the rear end of his vehicle. It seems quite clear from the evidence that plaintiff’s station wagon had almost completely left the south half of the pavement (eastbound lane) and at the time of the impact completely occupied the width of the north half of the pavement. The impact by defendant’s car occurred entirely on the north half of the pavement. This differs materially from the situation in the Jones case, which established this doctrine. In Jones, as pointed out previously, plaintiff’s instruction required a finding that plaintiff was driving on the right-hand side of the pavement, and the defendant’s instructions informed the jury that plaintiff could not recover if he permitted his vehicle to travel across the center line onto the left-hand side of the pavement.
In Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, plaintiff was a passenger in a Nash automobile going north on U.S. Highway 71 which at that point is a divided highway with separate double lanes for northbound and southbound traffic. According to plaintiff’s evidence, the Nash was in the left half of the northbound 20-foot lane and was approaching Blue [107]*107River Road intersection at 25 to 30 miles per hour. At a point 50 to 80 feet from the intersection the Nash began to slow down and angle left. When its left front wheel _ was a foot or so to the left of the west edge of the northbound pavement and the rear wheel two or three feet to the east of the west edge of the pavement, the driver of the Nash suddenly discovered the lights of a Chrysler coming up from behind at 40 to 45 miles per hour and trying to pass to his left. The driver of the Nash cut his wheels back right and accelerated. After it was entirely back on the northbound pavement, traveling north and parallel to U.S. 71 (its left wheels a couple of feet east of the west edge of the northbound pavement), the left rear end of the Nash was struck by the right front and right headlights of the Chrysler. Defendant’s version of the occurrence was different, but the court properly considered the evidence most favorable to plaintiff in considering whether a case was made under the rear-end collision doctrine. This court held that the factual situation brought the case within that doctrine. In so holding, the court said, 1. c. 878: “While this is not the typical factual situation in which the rear-end collision ‘doctrine’ ordinarily is invoked (because of the deviation in the course of the Nash) it is sufficiently akin to that class of cases (because the deviation was so slight) to require us to uphold a verdict based upon an instruction submitting the elements of that theory of recovery.” Subsequently, on the same page, the court further states: “Nor was there any deviation from this constant situation (the faster-moving Chrysler gaining on and finally overtaking the slower-moving Nash) sufficient to take this case out of the purview of the rear-end collision cases. True enough, there was a deviation in the course of the Nash (the driver angled to the left [west] edge of the pavement, intending to turn left onto the side road and started to make the turn) but the deviation was inconsequential, trivial and not so marked as to remove the case from the ‘clear and simple situation’ referred to in the decisions. * * * There was no real break in the continuity of the northerly movement of the Nash on No. 71. For all practical and legal purposes the Nash remained on No. 71 at all times preceding the collision.” In the same case, 1. c. 879, the court said: “If plaintiff’s evidence had been in accord with defendant’s evidence, namely, that the Nash suddenly and without warning turned left from the right lane onto the left or west half of the pavement, in front of the oncoming Chrysler then occupying the left or west half of the northbound lane, and that the Chrysler had struck the rear of the Nash under those circumstances, the so-called rear-end collision ‘doctrine’ would not have been applicable.”
We will not review all of the cases involving application of the rear-end collision doctrine nor undertake herein to define exactly what are the permissible outer limits of any deviation permitted from the basic premise of a following and overtaking vehicle which runs into the rear end of the lead or front vehicle which is traveling in the same direction at a place where it has a right to be. This can be determined satisfactorily only on a case by case basis, but we repeat the caveat expressed in Witherspoon v. Guttierez, supra, 1. c. 878: “It is not recommended that this theory of recovery be employed except where the facts come strictly within the pattern of the typical rear-end collision situation.” We emphasize that caveat.
It is unlikely that the other trial errors of which defendant complains will occur again in a new trial and hence we do not consider them herein. Defendant’s brief asserts that under the evidence the plaintiff was guilty of contributory negligence as a [108]*108matter of law, but we do not so find. The judgment is affirmed.
HENLEY, EAGER and DONNELLY, JJ., concur.
STORCKMAN, J., dissents in separate dissenting opinion filed.
HOLMAN, C. J., and SEILER, J., dissent and concur in dissenting opinion of STORCKMAN, J.