HUNTER, Special Judge.
This is an appeal by James Nicholson, defendant-appellant, from a judgment of the Circuit Court of St. Francois County in the sum of $15,000 in favor of plaintiff-respondent, William H. Price, for personal injuries arising out of the collision of two automobiles.
The notice of appeal was filed in the circuit court on July 9, 1959, and this court has appellate jurisdiction. Section 477.-040 RSMo 1949, V.A.M.S.
Defendant contends (1) that the humanitarian doctrine is not available to plaintiff as guest-passenger against his host-driver; (2) that plaintiff’s Instructions Nos. 1 and 6 contain error and (3) that the verdict is excessive.
Plaintiff’s petition alleged that on January 9, 1957, plaintiff was injured as the result of a collision between an automobile operated southbound on Highway 67 by his host-driver, James Nicholson, and an automobile operated eastbound on Highway 110 by Clifton Kirkpatrick at the intersection of those two highways near Festus. The petition, among other things, charged host-driver, Nicholson, with primary negligence (concurring with the negligence of Kirkpatrick) in driving the automobile at a high, dangerous and excessive rate of [3]*3speed under the circumstances, in failing to stop, slacken the speed or swerve so as to avoid striking the Kirkpatrick automobile; and in failing to drive the automobile as close as practicable to the right-hand side of the highway. The petition also charged humanitarian negligence against the host-driver, Nicholson, in failing to stop the vehicle, slacken its speed, swerve, or give a warning, after Nicholson saw plaintiff and the vehicle driven by Kirkpatrick in a position of imminent peril of being struck by Nicholson’s automobile and injuring plaintiff.
As to defendant Kirkpatrick the petition alleged primary negligence in failing to keep a proper lookout ahead and laterally, in failing to stop at the stop sign at the intersection, in failing to yield the right of way, in failing to slacken speed or swerve so as to avoid the collision, and, also, humanitarian negligence.
The separate answer of Nicholson was in the form of a general denial. Kirkpatrick’s separate answer included a general denial, a plea of joint enterprise between plaintiff and Nicholson and allegations of contributory negligence against plaintiff by reason of joint enterprise and alleged negligence of Nicholson. After filing the answer, the attorney for Kirkpatrick withdrew, and neither Kirkpatrick nor any attorney on his behalf thereafter participated in the trial. Nor has any appeal been filed on behalf of Kirkpatrick.
At the jury trial defendant Nicholson adduced evidence to the following effect: On January 9, 1957, plaintiff and defendant had been working together in St. Louis. Because it commenced to rain, work was terminated about 10:30 a. m., and they started back to Farmington, their residence, in defendant’s 1956 Studebaker automobile. It was misting rain, the pavements were wet and the windshield wipers of defendant’s car were operating. Visibility was very good. Plaintiff was in the right front seat of the automobile. They proceeded south on U. S. Highway 67 from St. Louis, through Festus, to the scene of the collision.
At the scene of the collision U. S. Highway 67 runs in a generally north-south direction. It is a four-lane highway consisting of two lanes for southbound traffic and two lanes for northbound traffic separated by a dividing strip of grass. North of the intersection U. S. Highway 67 has a gradual curve to the left as one proceeds south. The entrance, from U. S. Highway 67 to Highway 110, is situated on the western side of Highway 67, goes off in a “prong” fashion, and is some distance south of the mentioned gradual curve. The eastbound exit of Highway 110 is situated at the western edge of Highway 67, is 519 feet south of the mentioned entrance, and intersects Highway 67 at a right angle. The two southbound lanes of Highway 67 total twenty-four feet in width, and have a hard dirt with a gravel shoulder on the western side of 14 feet width. There is a “stop sign” and also a “yield right-of-way” sign for eastbound traffic at the exit of Highway 110.
Defendant was driving in the outside (westernmost) lane at approximately 35 miles per hour. As defendant’s car rounded the mentioned curve, plaintiff from his front seat position could see the intersection of Highway 110. There were no other automobiles in sight in any direction other than Kirkpatrick’s Dodge. '
At this point we refer directly to plaintiff’s testimony for his version as to what occurred. Plaintiff then saw the Kirkpat-trick Dodge car on 110 at 67. Its bumper was right at the edge of the pavement of 67 — possibly half a car’s length from that pavement. It was rolling easterly very slowly. He continued to watch it until the collision occurred. It just stayed moving slow and steady, too slow to estimate, and never stopped. “About where that prong that goes into DeSoto, that northbound lane you’re talking about, he [Mr. Nicholson] went into the inside [left] lane of 67.” At that time Mr. Nicholson slowed down [4]*4momentarily to about 30 and then put his foot back on the gas. The Dodge car at that time had reached the center of the two southbound lanes on 67. The middle of the Dodge was at the center line. I hollered, “Look out for that car.” Nicholson’s car was then about 200 feet from the Kirkpatrick automobile and was travelling at a speed of about 35 miles per hour. Nicholson jammed the brakes on before the collision. Nicholson’s car was as far to the left as he could go without getting off the pavement. “We just kept going until we crashed into him.” The front end of the Nicholson car hit the side of the Dodge on that inside lane of 67. As a result of the impact of the two cars, plaintiff was thrown against and partly through the windshield and severely injured. Plaintiff did not hear anyone sound a horn.
We next note defendant’s version of the occurrence commencing with when his car rounded the mentioned curve. When he first saw the Dodge on 110 he believed it was stopped. Its front wheels were “pretty close to” and might have been on the edge of Highway 67. Defendant saw the Dodge right after he got out of that curve. Defendant “guessed” he was 100 feet or so away from the Dodge at that time. Defendant was travelling in the outside southbound lane. His windshield wipers were on and he had a clear view. He continued to watch the Dodge until the impact occurred. He sounded his horn. He was travelling 30 to 35 miles per hour. He put on his brakes, slowed down 5 to 10 miles an hour slower. When about six or seven car lengths away from the Dodge (18 or 20 feet being a car length), he changed position from one side of the highway to the other. “Q. And then did you continue that same speed up to the point of collision? A. When I changed lanes I just you know kept on going. Q. Between the time you changed lanes and the time the collision took place what was the fastest speed your car attained? A. I guess about thirty-five.” He was three or four car lengths away, he guessed, from the Dodge when the Dodge’s front wheels crossed into the inside lane. “Q. Well, you told me you blew your horn once when you first saw it [Dodge car] then later you blew your horn a couple more times, you told me that you had slowed your car down and changed lanes then you increased your speed to thirty-five miles an hour; did you do anything in the operation of your car before the collision? A. Just put on my brakes. * * * I put my brakes on as soon as I seen I was going to hit him”— when “two or three car lengths, or four car lengths away.” Defendant’s car front hit the Dodge’s front right fender. The accident occurred with defendant’s car on the left portion of the inside lane — “right on the edge of the highway.” His car brakes were in good working condition, and he had new tires. Under the existing conditions he could stop his car “in sixty or seventy-five feet.”
On the witness stand defendant’s version differed somewhat from that given in his deposition as shown in evidence. He stated he first saw the Dodge when he was coming out of the curve and when it was about 100 feet away. “Q. Could it have been as much as 500 feet ? * * * A. Could have been around three. I don’t think it’d be five.” He thought it was stopped. He honked his horn while about three or four car lengths away and went into the inside lane while still three or four car lengths away. The Dodge “stopped there once [at the highway] and he moved out in front of me. * * * I stopped in the right hand lane. * * * I was about three, four car lengths from it when it pulled out in front of me” — ¡“about seventy-five,, eighty” feet away. “I honked my horn and I put on my brakes and I went off — and one tire [left-hand side] of my car went off the side of the road. I was doing about 35 miles an hour before I hit him. I applied my brakes and slowed down but I don’t know how much. I went off to'the left” — “about two left tires got off” the left' pavement.
In determining whether the trial court erred in ruling that plaintiff had made [5]*5a submissible jury case under the humanitarian doctrine this court, on appeal by defendant, in reviewing the evidence must take as true every fact and circumstance favorable to plaintiff which the evidence tends to prove, and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. Plaintiff is accorded the benefit of any part of defendant’s evidence favorable to him and not contradicted by plaintiff’s own testimony nor contrary to plaintiff’s fundamental theory of recovery. Capra v. Phillips Investment Co., Mo., 302 S.W.2d 924; Catanzaro v. McKay, Mo., 277 S.W.2d 566.
Defendant’s first contention is that the trial court erred to defendant’s prejudice in giving Instruction No. 1 at plaintiff’s request because the doctrine of humanitarian negligence submitted by the instruction was not available to this guest-passenger plaintiff against his host-driver defendant. Defendant’s contention as ventilated in his brief is that “no true humanitarian case can [ever] be made by the guest-passenger against the host-driver.”
Defendant and plaintiff agree that this issue has never been placed for decision before any appellate court of this state. Both cite Missouri cases indicating by dicta certain attitudes toward the subject by those participating in the opinions. These cases necessarily will be examined for reasons for or against the applicability of the doctrine, as will all other reasons advanced by either party.
The fundamentals determinative of the applicability are set out in the time-honored case of Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484: “The constitutive facts of a cause of action under the humanitarian rule, stated in their simplest terms, without any of the refinements, limitations, or exceptions which might arise on a particular state of facts, are contained in this formula: ‘(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.’ Evidence tending to prove these facts makes a prima facie case for plaintiff.”
The Banks case statement of the constitutive facts permitting the application of the humanitarian doctrine does not in and of itself declare that the doctrine is not applicable to the situation of a passenger-guest suing his host-driver. We must look elsewhere to see if a refinement, limitation or exception has been made to the doctrine as there stated that either excludes its application to a guest-passenger suing his host-driver or contains the basis for its exclusion.
In McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135, a guest-passenger sued his host-driver under the humanitarian doctrine for his injuries sustained when the host’s car collided with another car in an intersection. The host-driver contended his passenger failed to make a case under that doctrine. This court indicated the facts presented a humanitarian submission but reversed and remanded the case for a new trial because the instructions assumed a material controverted fact. No contention was made in the McCombs case that the doctrine was not applicable in guest-passenger suits against their host-drivers and no reasons on that basis were suggested against its application.
In Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593, plaintiff, a thirteen year old boy, was riding as a guest in the front seat of a car driven by defendant, his grandmother. Her car collided with a truck. The cause was submitted under the humanitarian doctrine, and the jury returned a verdict for plaintiff for $10,000. According to the opinion, 147 S.W.2d loc. cit. 597, on appeal “respondent [contended], that 'the case.is not governed by the humanitarian doctrine; * * * that plaintiff is [6]*6entitled to rely upon primary negligence [only] * * ” This court stated, 147 S.W.2d loc. cit. 597, "We hold, therefore, that the evidence was sufficient to make a submissible case for plaintiff under the humanitarian doctrine,” but reversed and remanded the cause for a new trial because the verdict-directing and damage instructions were erroneous for reasons not pertinent here.
In Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420, plaintiff, a guest-passenger sued under the humanitarian doctrine and received a judgment for personal injuries sustained when he leaped from the bed of a runaway truck abandoned by defendant’s driver-employee. On appeal it was held that plaintiff failed to make a submissible case under the humanitarian doctrine because before plaintiff was in a position of imminent peril the driver had abandoned the truck and was powerless thereafter to do anything to prevent plaintiff’s injury. Noting that plaintiff had made a submissi-ble case on primary negligence, the case was remanded for a new trial.
In Stitzell v. Arthur Morgan Trucking Co., Mo.App., 118 S.W.2d 49, a guest-pássenger sued her host-driver under the humanitarian doctrine for her injuries suffered when defendant’s car collided with a trailer-truck. On appeal, the judgment in •her favor was reversed and the case remanded for the reason, among others, that the petition failed to state defendant breached any duty owing to plaintiff but merely alleged defendant could have seen the trailer in a position of imminent peril in time to have avoided the collision.
In Thompson v. Gipson, Mo., 277 S.W.2d 527, plaintiff sued and in the trial court recovered for her personal injuries sustained while riding as a guest in the automobile operated by her host-daughter defendant when it collided with an approaching automobile. On appeal, this court reversed the judgment for errors in the instructions. Noting that defendant did not contend that in no event did plaintiff not have a right to recover under the humanitarian doctrine but only that plaintiff failed to show when imminent peril arose and defendant’s abil.ity thereafter to prevent the accident, the court commented, loe. cit. 530: “Inasmuch as the case is to be remanded for a new trial, at which the evidence may more definitely establish whether a submissible case exists under the humanitarian doctrine, we need not here further consider this assignment.” The court additionally said, loe. cit. ■532: “And, finally, we think it extremely doubtful that humanitarian negligence, in its true sense, is applicable to the facts in this case. It is tacitly admitted that plaintiff is not chargeable with any negligence, and it is difficult, therefore, to see how or in what manner plaintiff, as defendant’s guest, could come into a position of peril other than through the antecedent negligence of defendant or Mrs. Bohlig [driver of the other car], or both of them. Consequently, it seems clear that, as to her passenger, defendant’s negligence, if any, was primary rather than humanitarian.”
In Downing v. Dixon, Mo., 313 S.W.2d 644, plaintiff passenger sued his host-driver for injuries resulting from a two-car collision. The claim against the host-driver was submitted under the humanitarian doctrine. The court noted, loe. cit. 650, that defendant “Dixon seems to question, casually, whether a guest may proceed in any event against his own driver by a submission of humanitarian negligence, citing Thompson v. Gipson, Mo., 277 S.W.2d 527. The question is not properly included as a point of the brief under our rules, nor is it actually briefed. Under those circumstances we find it unnecessary to decide it.” The cause was remanded on other grounds.
In Downing v. Dixon, Mo.App., 314 S.W.2d 927, 929, the Springfield Court of Appeals stated, “We find it unnecessary, as did the Supreme Court in the companion case, to determine whether a guest properly may proceed against her host driver on humanitarian negligence.”
[7]*7In the most recent case on the subject, Lay v. McGrane, Mo., 331 S.W.2d 592, plaintiff passenger recovered under the humanitarian doctrine against his host-driver. Noting that the host-driver defendant did not contend on appeal that the humanitarian doctrine is inapplicable as between such passenger and driver, this court assumed without deciding that such a submission is proper. We reversed the judgment as to defendant driver and ordered a new trial on the issue of liability only for error in the verdict-directing instruction. In a separate concurring opinion two members of this court took opportunity to state their view that the humanitarian negligence rule is not applicable to a situation where a plaintiff is riding as a guest in defendant’s automobile. The assigned reasons in the concurring opinion were, loe. cit. 600: (1) “A position of peril from the vehicle operated by the defendant (not danger to a passenger from driving the car against another object) is essential”; (2) The conduct in driving a car with a guest into collision with another car or object should be classed as primary negligence. “Such peril was being created by the driver as he moved toward the other car.” It is “primary and not humanitarian negligence thus to take another person into such peril,” and (3) “where there is no claim of contributory negligence on the part of the guest, it is difficult to see what purpose could be served by a humanitarian submission.”
To these suggested reasons adopted by defendant as to why the humanitarian doctrine is not applicable to the suit by the guest-passenger against his driver-host defendant additionally states “the humanitarian situation could not in any event arise until the peril became certain, or imminent; if it does become certain, it does so through a combination of two instrumentalities, over one of which defendant has control, and over the other of which he does not. Once it becomes certain, partly through defendant’s primary or antecedent negligence, defendant has passed the position at which he can stop or swerve and avoid the collision, and thus the operation of the humanitarian doctrine is made impossible.”
We proceed to examine these suggested reasons, commencing with the last given. Viewing the evidence in the light most favorable' to plaintiff, as we must, we note that defendant was constantly watching the Kirkpatrick Dodge car from the time defendant rounded the mentioned curve. He could see that it was steadily moving across the intersection of the two highways and across defendant’s path. Defendant could stop his car in 60 or 75 feet. He slowed down his car from 35 miles per hour to 30 or 25 miles per hour momentarily, and changed lanes. He then put his foot back on the gas and increased his speed to 35 miles per hour again. He hit the Kirkpatrick car while both cars were in the easternmost lane. Even under defendant’s own version of the accident defendant’s car was about 75 or 80 feet away when the Kirkpatrick car pulled out in front of him.
We think it evident that the jury properly could have found that plaintiff and the, automobile in which he rode were in imminent peril, at least from the moment the Kirkpatrick Dodge car had reached the center line of the two southbound lanes on Highway 67 where it partially blocked both lanes. At that point the middle of the Dodge was at the center line. According to plantiff, the Nicholson car was still 200 feet away and travelling about 35 miles per hour and moving into the easternmost of the two lanes directly in the path of the slowing oncoming Dodge. We think the peril was certain and imminent within the authorities relied upon by defendant. See, McClanahan v. St. Louis Public Service, Co., 363 Mo. 500, 251 S.W.2d 704; McCombs v. Ellsberry, supra. Defendant was watching the Dodge and such peril was or should have been apparent to him. The jury could well find that defendant in the exercise of the highest degree of care, with the means at hand, with safety to himself, his car and its plaintiff occupant could have stopped his car, or turned the same aside, to his right, and have avoided the collision. [8]*8Cf., Evans v. Farmers Elevator Co., supra; Lay v. McGrane, supra.
Thus, we fail to find any merit in defendant’s contention that the doctrine cannot apply because once the peril'became certain defendant had passed the position where he could stop or swerve and avoid the collision.
Nor is there any determining merit in defendant’s suggestion that the peril becomes certain through a combination of two in-strumentalities, over one of which defendant has control and the other he does not and thereby eliminates the applicability of the doctrine. This factor exists in numerous situations where no one challenges the applicability of the doctrine and in and of itself provides no sound reason for denying the availability of the doctrine. It probably exists in all two-car collisions where the driver of one car is suing the driver of the other car, or a passenger in one car is suing the driver of the other car. In two-car collision cases the peril,— danger, cause or source of injury cannot fairly be said to arise or result from just one car. The peril or position of peril of plaintiff is the result of the relative position and movement of the two cars about to collide. Frequently both drivers share the blame for creating the perilous situation. In such a situation of peril if the driver of one of them has notice thereof, actual or constructive, with the present ability, with the means at hand, to avert the injury without injury to himself or others and fails to exercise the highest degree of care to do so it has never been held to be a defense to a suit by the injured party under the humanitarian doctrine that plaintiff’s position of peril arose in the first instance from the position and movement of the two cars about to collide rather than solely from the one which he occupied.
The next suggested reason is that a position of peril from the vehicle operated by the defendant, and not danger to a passenger from driving the car against another object, is essential. Under the facts presented, plaintiff was imperiled by his position as passenger in defendant’s car moving into collision with another car, and when the collision occurred he was thrown violently against the interior of and partly through the windshield of his host’s car. To require more in order to satisfy the suggested reason would be to add a new element or criterion to the humanitarian doctrine different from any heretofore expressed or required. The suggested reason is in reality a new proposed requirement and does not within itself contain its own justification.
Another suggestion for nonapplicability of the doctrine is that the conduct of the driver in driving a car with a guest into collision with another car or object should be classed as primary negligenc.e. The fact is that in many if not most humanitarian cases the humanitarian negligence is but a continuance of' earlier primary negligence seized upon at the very moment that plaintiff is in imminent peril. That this is so has never before, of itself, been suggested as a reason to deny the applicability of the doctrine. Under such a contention the defense of contributory negligence would be a complete bar to any recovery, although the particular event might otherwise present all of the constitutive facts of a cause of action under the humanitarian doctrine. Such a result would seem contrary to the basic need and purpose that gave birth and sustenance to the humanitarian doctrine. As so well said in the Banks decision, supra, 257 S.W. loc. cit. 484: “The doctrine from which the rule has been evolved is something more than an exception to the law of contributory negligence. It ‘proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may' be averted without injury to others.’ ”
We are unwilling to make a broad denial of the availability of the doctrine by taking the position that when a host-driver of a car drives it into collision with another car [9]*9or object, no matter what the other relevant facts may he his passenger-guest has available only a primary negligence submission.
Defendant suggests the doctrine is not available to anyone who is not charged with contributory negligence. Indeed, some states do take that view, but this state has long held that the presence or absence of contributory negligence is immaterial to the applicability of the doctrine. See, Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Mooney v. Terminal R. Ass’n of St. Louis, 352 Mo. 245, 176 S.W.2d 605 [6]; Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; 65 C.J.S. Negligence § 137b, page 764; Annotations, 25 A.L.R.2d 254, 289; 171 A.L.R. 413.
Looking to what other states do on the comparable question of whether the last clear chance doctrine is applicable to suits by guest-passengers against their host-drivers, we neither found nor were cited to any that held that the mere relationship of driver and passenger prevented its applicability. Of the six cases our research revealed, the doctrine was applied apparently without challenge such as made here.
In Prather’s Adm’r v. Allen, 291 Ky. 353, 164 S.W.2d 402, decedent passenger, obviously intoxicated, insisted on standing on the running board of defendant’s truck as it was about to resume its journey. Defendant advised him to get back in the truck, that he might get hurt. Deceased declined. Defendant started the truck and proceeded several hundred yards along a very rough road at a substantial speed. Decedent- fell from the truck and was killed. After finding decedent guilty of contributory negligence as a matter of law, the Kentucky Court approved the application of its humanitarian doctrine to permit recovery, saying, 164 S.W.2d loc. cit. 403: “ * * * the decedent was clearly in a position of peril while on the running board if he was so intoxicated as to be incapable of realizing his danger and taking ordinary precautions to guard against it. One is no more justified in starting up a motor vehicle [and driving it at such speed on such a road] with an adult on the running board in a helpless condition as a result of intoxication than he would be in doing so with a very young child on the running board.”
In Richardson v. State, 203 Md. 426, 101 A.2d 213, 44 A.L.R.2d 231, a seventeen year old boy was thrown from the body of a truck under circumstances under which the defendant had the last opportunity to avoid his injury. The doctrine was deemed applicable.
In Chadwick v. City of New York, 301 N.Y. 176, 93 N.E.2d 625, a ten year old boy was riding as a passenger on the front fender and was bounced off, dragged some distance, and killed as the truck travelled on unpaved, bumpy road. Recovery under the last clear chance doctrine was approved.
In Tenney v. Enkeball, 62 Ariz. 416, 158 P.2d 519, the driver of defendant’s truck drove several blocks with plaintiff on the running board in a position which the driver knew to be dangerous. Recovery under the last clear chance doctrine was approved. See, also, Turenne v. Smith, 215 Minn. 64, 9 N.W.2d 409 (discovered peril), and Neman v. Knight, Tex.Civ.App., 227 S.W.2d 606. In Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6, plaintiff-passengers injured in a two-car collision sued the estate of their host-driver and the owner of the other vehicle. The court charged the jury under the doctrine of last clear chance and plaintiff’s resultant verdict was approved on appeal.
It is apparent from prior statements in opinions of this court that there is thoughtful feeling that the humanitarian doctrine born originally of necessity was never intended to be used in a case such as we have before us. There are reasons for that feeling. In 65 C.J.S. Negligence § 136, page 759, it is stated, “ * * * the doctrine is one involving nice distinctions, often of a technical nature, and the courts should be wary in extending its application.” Certainly, a submission under the humanitarian doctrine is more technical, complicated and [10]*10subject to misunderstanding by a lay jury than the submission on primary negligence would be. Further, by submitting his case under the doctrine this plaintiff has only increased his burden with no offsetting benefits. By submitting under the doctrine he has had to abandon defendant-driver’s antecedent primary negligence and rely on his ability to establish his imminent peril, defendant’s notice thereof, defendant’s ability with the means at hand to have thereafter averted the injury without injury to himself or others, and defendant’s failure to exercise the highest degree of care to avert such' injury.
A decision holding the doctrine applicable to a nonnegligent plaintiff-passenger suing his host-driver for injuries suffered in a two-car collision when the guest-passenger admittedly has no practical reason for resorting to it, and has an adequate remedy, easier for a jury to understand and not as conducive to technical errors, through a primary negligence submission, while technically not an extension of the doctrine admittedly would not advance the cause of justice, and,, in the thinking of some, would detract from it.. In such a situation there shóuld be a voluntary refraining from its use, if for no other reason, than to minimize the possibility of error in submission and result.
Yet in our final analysis we must recognize that if plaintiff has been successful in submitting his case under the complicated humanitarian doctrine, without legal error and without confusing or misdirecting the jury so as to warrant retrial, his selection of a'humanitarian submission resulted only in increasing his burden and did not in any way prejudice defendant. Absent error' and prejudice, we are without sound legal basis for and are unwilling to reverse this judgment.
Defendant contends respondent’s Instruction No. 1 permitted the jury to find that plaintiff was in a position of peril when defendant’s automobile was "at or near” the intersection and Kirkpatrick’s automobile was “at or near” the intersection, which unduly broadened the danger zone and gave the jury a roving commission. The pertinent portion of the lengthy instruction provides: “⅜ * * and if you further find and believe from the evidence that at the time and place mentioned in evidence the plaintiff, William H. Price, was a passenger in the said Nicholson automobile, and that at said time and place the Nicholson automobile and the Kirkpatrick automobile were in imminent peril of striking and colliding with each other and injuring the plaintiff * * * and * * * defendant, James Nicholson, saw, or by the exercise of the highest degree of care could have seen the said automobile and the plaintiff in said position of imminent peril, if any * * (Italics ours.)
Instruction No. 2, to which no objection is made, instructs that “by the term ‘imminent peril’ is meant a place where there is certain danger, and not a place where there is just á mere possibility of an injury occurring.”
A reading of the entire instruction reveals that the italicized words “at said time and place” reasonably and grammatically refer to the immediately preceding italicized clause “at the time and place mentioned in evidence.” Thus, the jury was directed to refer to the time and place mentioned in evidence and required to find that at said time and place the automobiles, and inferentially -the plaintiff, were in imminent peril. It is well settled that no duty on a defendant to act arises until plaintiff is actually in a position of'imminent peril, and that when he is in a position of imminent peril is a question for the jury under ail the evidence. Harrington v. Thompson, Mo., 243 S.W.2d 519. As in the Harrington case where a similar .contention was found to be without merit, the instruction does require a finding that plaintiff was in imminent peril and leaves it to the jury to make that finding limiting it to the time and place mentioned in evidence. The in[11]*11struction does not contemplate liability predicated on the approach to a position of imminent peril. See, also, Wyckoff v. Davis, Mo., 297 S.W.2d 490, 496.
Inherent in defendant’s criticism is the suggestion that by using the phrase “at the time and place mentioned in evidence” the jury is permitted to find that plaintiff was in -a position of peril at a place where and when as a matter of law he could not have been in imminent peril. The instruction does not tell the jury or suggest to it that plaintiff was in a position of peril at any specific time or place. It does not affirmatively place a duty on defendant to act before plaintiff was in imminent peril. It does not contain a misstatement as to where imminent peril began, nor make it likely that the jury will find that plaintiff was in a position of imminent peril at a time and place where and when he could not have been in such position. To require more as defendant would have us do, in effect would require a plaintiff before he has prepared his instruction to determine the exact place and time prior to which he could not as a matter of law have been in a position of imminent peril. This is both unrealistic and unnecessary to a fair submission. As stated in the Harrington case, 243 S.W.2d loc. cit. 527, any such requirement “tends to encroach upon the province of the jury, places an unnecessary burden upon the plaintiff, and may tend to confuse rather than to clarify.” It is not reasonable to believe that the jury under the evidence in this case and under the mentioned instructions considered together could have been led to believe that it could properly find that plaintiff was in a position of imminent peril at a time and place when and where he could not as a matter of law have been in imminent peril. In this it is distinguishable from the situation presented in Ornder v. Childers, Mo., 327 S.W.2d 913. In the Ornder case the instruction contained a misstatement as to where imminent peril began. We find no merit in defendant’s contention.
Defendant’s next contention is that Instruction No. 6 given to the jury at the request of plaintiff is erroneous in that it ignores and does not require a finding of the element of proximate causation of defendant’s concurring negligence; is in conflict with Instruction No. 4 and injects the false issue that defendant was using the negligence of Kirkpatrick as a defense. Instruction No. 6 reads in part that if the jury finds from the evidence and the instructions that the negligence of Nicholson, “no matter how great,” and the negligence of Kirkpatrick, “no matter how great,” concurred to injure the plaintiff then it would be it's duty to find against both defendants, “because if both defendants were negligent in any respect submitted to you in these instructions, * * * then neither defendant, even if less negligent than the other defendant, could make use of the concurring negligence of such other defendant to defeat the claim of the plaintiff against both defendants.”
In attacking Instruction No. 6, defendant cites Rothweiler v. St. Louis Public Service Co., Mo., 234 S.W. 552, and Schneider v. St. Louis Public Service Co., Mo., 238 S.W.2d 350.
Plaintiff’s Instruction No. 6 is identical to the first paragraph of the instruction contained in the Rothweiler case, supra, and that first paragraph was not found to be prejudicially erroneous. Rather, it was the second paragraph not used in the instant case that was condemned in the Rothweiler case. The Schneider case, supra, relied upon by defendant, referred only to the sec-' ond paragraph of the Rothweiler instruction and thus is not applicable to Instruction No. 6. In the case of Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, 115, the court considered the mentioned language of Instruction No. 6 and held it was not prejudicially erroneous but recommended it be replaced. In Ketcham v. Thomas, Mo., 283 S.W.2d 642, 647, this language was again held not prejudicially erroneous, the court noting that a purpose of the instruction was to advise the jury [12]*12that in determining the question of liability of the two defendants, no consideration was to be given to the comparative degrees of negligence between them. For a more thorough treatment of the question reference should be made to that case. Instruction No. 6 does require a finding that the negligence of both defendants “directly concurred, combined and contributed to cause” the plaintiff injury and thereby requires a finding of the element of proximate cause.
What we have said also disposes of defendant’s contention of conflict between Instruction Nos. 4 and 6. Instruction No. 4 given at defendant’s request is a converse of certain of the necessary elements of plaintiff’s verdict-directing Instruction No. 1. We find no conflict in the two instructions.
Defendant’s final contention is that the verdict of $15,000 is excessive.
We briefly describe plaintiff’s injuries according to plaintiff’s evidence, noting defendant produced no medical evidence. Plaintiff suffered three large, permanent scars of the forehead and eyelid and two additional permanent scars of the right cheek and lower lip; a large fracture of the skull six centimeters in length, and a smaller fracture of the right robital rim; there ■was bleeding in the right eye with blurring of vision; multiple abrasions of the scalp, a cerebral concussion; dizziness, nausea, vomiting; headaches persisting over a two-year period and while not as severe still recurring at the time of trial; injury to and resultant loss of seven natural teeth requiring in some instances removal thereof, removal of nerves thereof, and, again in some instances, capping; loss of a lower partial plate; a permanent numbness of the right forehead in the distribution of the fifth nerve, the opthalmic branch on the right. He is unable to eat properly because of the condition of and lack of teeth. He lost $966.50 in wages and $857 in hospital, medical and dental expenses.
Considering this evidence and having in mind that the jury saw the plaintiff and had a better opportunity to understand the extent of his disfiguration and other physically visible damage, we are not prepared to say the jury’s verdict is excessive. Unless a jury’s verdict is grossly excessive or inadequate, an appellate court should not set aside or disturb the verdict. McCarthy v. Sebben, Mo., 331 S.W.2d 601.
For the reasons stated, the judgment is affirmed.
WESTHUES, EAGER, LEEDY and HOLLINGSWORTH, JJ., concur.
STORCKMAN, J., dissents in separate opinion and concurs in dissenting opinion of HYDE, C. J.
HYDE, C. J., dissents in separate opinion and concurs in dissenting opinion of STORCKMAN, J.
DALTON, J., dissents and concurs in dissenting opinions of HYDE, C. J., and STORCKMAN, J.