Dressler v. Louvier , 1966 Mo. LEXIS 590 ( 1966 )

FINCH, Judge

(dissenting).

I respectfully dissent from the majority opinion herein. In my judgment, Instruction No. 3 was not prejudicially erroneous.

It will serve no useful purpose to analyze and discuss the instruction in detail because cases now are tried under instructions prescribed by MAI. Consequently, I observe simply that the term “immediately” was used in connection with the question of whether plaintiff was in a position of imminent peril. The instruction commences, “The Court further instructs you that if you find and believe from all the evidence that immediately prior to the collision, Dr. Dressier was in a position of imminent peril * * If the term “immediately” has the effect of limiting, it limits the zone of peril, which would be to the detriment of the plaintiff, not defendant.

MAI Instruction 17.15 requires the jury to find, “First, plaintiff was in a position of immediate danger of being injured * * *» if the term “immediate” is not misleading and is not erroneous in MAI 17.15, it is not misleading or prejudicially erroneous in Instruction No. 3.

I would affirm the judgment.