L. F. COTTEY, Special Judge.
Plaintiff was injured when the automobile in which she was a passenger was struck from the rear by one driven by defendant. On trial of her action for damages the jury returned a verdict for defendant. Thereafter the trial court sustained plaintiff’s motion for new trial on the sole ground that prejudicial error had been committed in the giving of defendant’s Instruction 7. Defendant appeals from that ruling.
The Martin car in which plaintiff was riding at the time the accident occurred was being driven northwardly by her husband in a long procession of northbound Sunday afternoon traffic on U.S. Highway 61. Behind it followed defendant’s car. Next ahead of the Martin car was one we shall refer to as the Coxey car. At times all of the cars in the northbound traffic lane traveled at speeds of 55-60 miles per hour and at times they slowed to 20-25 miles per hour. Just before the accident developed they were all proceeding at about 40-45 miles per hour. The Martin car had been maintaining a distance of some eighty to a hundred feet behind the Coxey car and defendant was following the Martin car at a distance of about sixty feet. The accident developed when all of the forward cars slowed abruptly. Observing the Coxey car slowing in front of him, Martin applied his brakes and came to a “rather fast” stop, or virtually to a stop. Instantly thereafter the impact from defendant’s car occurred.
Plaintiff’s version of the incident, supported by substantial evidence, was that the Martin car succeeded in stopping behind the Coxey car without touching it, while both cars were still on the pavement in the northbound traffic lane; that defendant’s car then struck the Martin car from behind with such force that it was knocked forward into the Coxey car, from which it bounced off to its left ar.d came to rest, still on the paved slab, with its front end at an angle across the center-line of the highway.
Defendant’s version of the incident, supported by substantial evidence, was that when the brakes were applied on the Martin car it went into an angling skid, more or [611]*611less out of control; that in an effort to avoid involvement in any accident that might result from that misadventure defendant applied his own brakes and drove his car off onto the right-hand shoulder of the highway to get out of the line of traffic; that he would have been successful in avoiding the Martin car by that maneuver had it not been that at that moment the Martin car collided with the Coxey car and bounced off to its right, with a portion of its rear end on the shoulder directly in defendant’s path; that in that position it was struck on its right rear corner by defendant’s car and knocked back on the pavement at an angle across the centerline; that defendant’s car was completely off the pavement, on the shoulder, at the time.
Plaintiff’s verdict directing Instruction 2 ' hypothesized a speed of “about thirty-five to forty miles per hour” for defendant’s car and a distance of “about sixty feet” between it and the Martin car, and then submitted the proposition that defendant was negligent in following plaintiff’s automobile too closely at that speed.
Defendant countered with Instruction 7 in this language, portions of which have been bracketed for easy reference:
“(The Court instructs the jury that if you find and believe) that on the occasion mentioned in evidence plaintiff was riding as a passenger in an automobile which was being operated in a northwardly direction on Highway 61 and that defendant Hubert Sitz was driving an automobile behind and to the rear of plaintiff’s automobile; and if you further find that traffic ahead of plaintiff’s automobile began slowing and that plaintiff’s automobile slowed suddenly and skidded and collided with the rear of the automobile ahead before and prior to the time it was involved in the collision with the defendant’s automobile; and if you find that defendant, to avoid the collision, applied his brakes and swerved onto the east shoulder of the highway and was on said shoulder when the collision with the plaintiff’s automobile occurred; and if you find (that defendant) at all times as he approached the place where the collision occurred was exercising the highest degree of care in the operation of his automobile and (was not negligent in following plaintiff’s car too closely as submitted in Instruction No. 2, then you are instructed that your verdict will be in favor of the defendant.)”
Plaintiff’s attack on that instruction runs to ten paragraphs in her motion for new trial. In an effort.to confine the inquiry within reasonable limits we will say that we do not regard Instruction 7 as a “sole cause” instruction, and all criticism directed against it from that standpoint will therefore be disregarded. Neither do we think it is, or was intended as, an “emergency” instruction, and all objections to it based on that premise will likewise be disregarded. That leaves us with the question as to whether it is a “no negligence converse” instruction, as plaintiff suggests for a third alternative, and, if so, whether it is prejudicially erroneous as such.
Plaintiff says that if the instruction had been designed as a true converse (which requires no evidence to support it, Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662) it would have read simply, “The court instructs the jury that if you find and believe from the evidence that defendant was not negligent in following plaintiff’s automobile as submitted to you in Instruction 2, then your verdict should be in favor of the defendant.” A reference to the bracketed portions of Instruction 7 will disclose that it contains almost that identical wording. It must be that the instruction is, then, as defendant insists, a true converse coupled with an hypothesis of certain affirmative evidentiary facts which are relied on either as constituting a complete and independent defense in and of themselves, or as disproving one or more of the essential factual elements of plaintiff’s case. It is not suggested that [612]*612there is any impropriety in joining the two propositions in a single instruction, although the usual practice is to submit them separately; and we think they may be joined, either conjunctively or disjunctively, provided each is complete and proper when examined separately. See by analogy, Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 466. Now we take it to be conceded that the true converse portion of Instruction 7 is complete and proper. And we think the facts hypothesized in the remaining portion are supported by substantial evidence. The narrow question, then, is, allowing that they are all true, do they add up to a submissible theory of defense? The answer requires a detailed analysis of the defensive factual hypotheses contained in the instruction.
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L. F. COTTEY, Special Judge.
Plaintiff was injured when the automobile in which she was a passenger was struck from the rear by one driven by defendant. On trial of her action for damages the jury returned a verdict for defendant. Thereafter the trial court sustained plaintiff’s motion for new trial on the sole ground that prejudicial error had been committed in the giving of defendant’s Instruction 7. Defendant appeals from that ruling.
The Martin car in which plaintiff was riding at the time the accident occurred was being driven northwardly by her husband in a long procession of northbound Sunday afternoon traffic on U.S. Highway 61. Behind it followed defendant’s car. Next ahead of the Martin car was one we shall refer to as the Coxey car. At times all of the cars in the northbound traffic lane traveled at speeds of 55-60 miles per hour and at times they slowed to 20-25 miles per hour. Just before the accident developed they were all proceeding at about 40-45 miles per hour. The Martin car had been maintaining a distance of some eighty to a hundred feet behind the Coxey car and defendant was following the Martin car at a distance of about sixty feet. The accident developed when all of the forward cars slowed abruptly. Observing the Coxey car slowing in front of him, Martin applied his brakes and came to a “rather fast” stop, or virtually to a stop. Instantly thereafter the impact from defendant’s car occurred.
Plaintiff’s version of the incident, supported by substantial evidence, was that the Martin car succeeded in stopping behind the Coxey car without touching it, while both cars were still on the pavement in the northbound traffic lane; that defendant’s car then struck the Martin car from behind with such force that it was knocked forward into the Coxey car, from which it bounced off to its left ar.d came to rest, still on the paved slab, with its front end at an angle across the center-line of the highway.
Defendant’s version of the incident, supported by substantial evidence, was that when the brakes were applied on the Martin car it went into an angling skid, more or [611]*611less out of control; that in an effort to avoid involvement in any accident that might result from that misadventure defendant applied his own brakes and drove his car off onto the right-hand shoulder of the highway to get out of the line of traffic; that he would have been successful in avoiding the Martin car by that maneuver had it not been that at that moment the Martin car collided with the Coxey car and bounced off to its right, with a portion of its rear end on the shoulder directly in defendant’s path; that in that position it was struck on its right rear corner by defendant’s car and knocked back on the pavement at an angle across the centerline; that defendant’s car was completely off the pavement, on the shoulder, at the time.
Plaintiff’s verdict directing Instruction 2 ' hypothesized a speed of “about thirty-five to forty miles per hour” for defendant’s car and a distance of “about sixty feet” between it and the Martin car, and then submitted the proposition that defendant was negligent in following plaintiff’s automobile too closely at that speed.
Defendant countered with Instruction 7 in this language, portions of which have been bracketed for easy reference:
“(The Court instructs the jury that if you find and believe) that on the occasion mentioned in evidence plaintiff was riding as a passenger in an automobile which was being operated in a northwardly direction on Highway 61 and that defendant Hubert Sitz was driving an automobile behind and to the rear of plaintiff’s automobile; and if you further find that traffic ahead of plaintiff’s automobile began slowing and that plaintiff’s automobile slowed suddenly and skidded and collided with the rear of the automobile ahead before and prior to the time it was involved in the collision with the defendant’s automobile; and if you find that defendant, to avoid the collision, applied his brakes and swerved onto the east shoulder of the highway and was on said shoulder when the collision with the plaintiff’s automobile occurred; and if you find (that defendant) at all times as he approached the place where the collision occurred was exercising the highest degree of care in the operation of his automobile and (was not negligent in following plaintiff’s car too closely as submitted in Instruction No. 2, then you are instructed that your verdict will be in favor of the defendant.)”
Plaintiff’s attack on that instruction runs to ten paragraphs in her motion for new trial. In an effort.to confine the inquiry within reasonable limits we will say that we do not regard Instruction 7 as a “sole cause” instruction, and all criticism directed against it from that standpoint will therefore be disregarded. Neither do we think it is, or was intended as, an “emergency” instruction, and all objections to it based on that premise will likewise be disregarded. That leaves us with the question as to whether it is a “no negligence converse” instruction, as plaintiff suggests for a third alternative, and, if so, whether it is prejudicially erroneous as such.
Plaintiff says that if the instruction had been designed as a true converse (which requires no evidence to support it, Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662) it would have read simply, “The court instructs the jury that if you find and believe from the evidence that defendant was not negligent in following plaintiff’s automobile as submitted to you in Instruction 2, then your verdict should be in favor of the defendant.” A reference to the bracketed portions of Instruction 7 will disclose that it contains almost that identical wording. It must be that the instruction is, then, as defendant insists, a true converse coupled with an hypothesis of certain affirmative evidentiary facts which are relied on either as constituting a complete and independent defense in and of themselves, or as disproving one or more of the essential factual elements of plaintiff’s case. It is not suggested that [612]*612there is any impropriety in joining the two propositions in a single instruction, although the usual practice is to submit them separately; and we think they may be joined, either conjunctively or disjunctively, provided each is complete and proper when examined separately. See by analogy, Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 466. Now we take it to be conceded that the true converse portion of Instruction 7 is complete and proper. And we think the facts hypothesized in the remaining portion are supported by substantial evidence. The narrow question, then, is, allowing that they are all true, do they add up to a submissible theory of defense? The answer requires a detailed analysis of the defensive factual hypotheses contained in the instruction.
First, “ * * * that on the occasion mentioned in evidence plaintiff was riding as a passenger in an automobile which was being operated in a northwardly direction on Highway 61 and that defendant Hubert Sitz was driving an automobile behind and to the rear of plaintiff’s automobile, and * * * that traffic ahead of plaintiff’s automobile began slowing and that plaintiff’s automobile slowed suddenly” ; (those facts confirm plaintiff’s theory; they do not controvert it in any particular and are devoid of defensive effect; the sudden slowing of plaintiff’s car did not relieve defendant of the duty to avoid colliding with it and could therefore have real significance only in an emergency instruction, which this is not) ; Second, that plaintiff’s automobile “skidded and collided with the rear of the automobile ahead before and prior to the time it was involved in the collision with the defendant’s automobile”; (here we have a factual situation at odds with plaintiff’s version, but the disagreement is superficial only and lacking in any real defensive significance because the first collision does not excuse the second, nor justify defendant in colliding with her either then or thereafter) ; Third, “ * * * that defendant, to avoid the collision, applied his brakes and swerved onto the east shoulder of the highway and was on said shoulder when the collision with the plaintiff’s automobile occurred * * * ”; (Surely an unsuccessful attempt to avoid an accident has never been allowed to exculpate a defendant whose own negligence is assigned as the cause of it, as here, for instance, where he is charged with following too closely at the rate of speed he was driving; and the further fact that he was driving on the shoulder at the time the impact occurred is equally irrelevant since the law gives him no greater right to run plaintiff down there than on the pavement.) Those are all the hypothesized facts. It is clear that they do not constitute a complete and independent defense; neither do they controvert or disprove any essential factual element of plaintiff’s case. Not only is the instruction incomplete “* * * in the essentials of its hypothesization * * it is equally lacking “ * * * in a recognition of defendant’s duties. * * * ” Carlson v. St. Louis Public Service Company, Mo., 358 S.W.2d 795, 801. Nothing in it serves to negate the primary negligence submitted by plaintiff’s Instruction 2. As plaintiff says, “ * * * Every fact that the defendant has hypothesized to exonerate himself could be true and still he could be negligent in following too closely. * * * ” The omission of these essential elements cannot be supplied by appending to the instruction a cryptic “catch-all” clause to the effect that defendant was “ * * * exercising the highest degree of care * * * ” or that he was “not negligent as submitted in other instructions.” Ozbun v. Vance, Mo., 323 S.W.2d 771, 775; Carlson v. St. Louis Public Service Company, supra, 358 S.W.2d p. 802. There is nothing in those clauses to inform the jury that the hypothesized facts were mere window dressing and not a bona fide defense.
It is no answer to suggest that the defect is unimportant on the theory that the instruction was proper as a true converse, and that whatever may have been [613]*613added to it conjunctively, being unnecessary, could amount to nothing more than the assumption by defendant of a larger burden than the law required him to bear and ought therefore be disregarded as sur-plusage, as is the practice where a plaintiff’s conjunctive submission requires the jury to find, in addition to all properly proven facts essential to his recovery, certain others which were not proven but were not essential. The same latitude is not allowable to a defendant in this particular. If a defendant hypothesizes certain facts ostensibly as a defense, then they must constitute a defense. They must be sufficient in and of themselves to negate plaintiff’s theory of recovery; and this is true even though a general finding of no negligence is required by other portions of the instruction. Otherwise, as was said in Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417, 421, the inclusion of the hypothesized facts “ * * * could amount to nothing other than a singling out and giving undue prominence to defendant’s evidence, not in explanation of any principle relied upon, but simply as something put in an instruction which would serve no purpose other than to confuse the jury.” Instruction 7 is vulnerable to that very criticism. The error in it is just as prejudicial as it was in the instruction under review in the Rohde case.
Accordingly, the ruling of the trial court is affirmed and the cause remanded for a new trial in conformity therewith.
RUDDY, P. J., and ANDERSON, J., concur.