In the action, commenced November 4, 1937, the plaintiff, Harry Haskins, sought to recover from the defendants, Walter L. Thenell, Hartford Accident Indemnity Company, and Martin Orchard Operating Company, Inc., damages sustained by him as a result of an automobile collision which occurred on June 3, 1937. The defendants denied that Thenell was negligent in any respect. Trial was had to the court and a jury. The jury returned a special verdict, and in substance found that at the time and immediately prior to the accident, the defendant, Thenell, was negligent with respect to, (a) failing to keep a proper lookout; (b) failing to have his automobile under proper control; (c) turning to the left into the pathway of the oncoming Haskins automobile, and that the negligence of the defendant in each of those respects was a natural cause of the collision; that at the time *Page 98 of and immediately prior to the collision, the plaintiff, Harry Haskins, was negligent with respect to, (a) failing to keep a proper lookout; (b) failing to have his automobile under proper control; (c) turning to the left into the path of the oncoming Thenell automobile, and that the negligence of the defendant in each of those respects was a natural cause of the collision; that the damages suffered by the plaintiff were as follows:
Doctor, hospital, medical, and nursing bills ......... $2,151.15; Loss of earnings ..................................... 500.00; Pain and suffering ................................... 1,500.00;and that of the total causal negligence, forty per cent was attributable to the negligence of the plaintiff, and sixty per cent to the negligence of the defendant, Thenell. Upon the coming in of the verdict, the plaintiff moved for a new trial on the following grounds: (1) That the verdict was contradictory and inconsistent; (2) the verdict as to the assessment of damages was perverse; and (3) justice had not been done. The defendant moved to change the answers of subdivision (a) of question 7 from "40%" to "50%," and the answer to subdivision (b) of question 7 from "60%" to "50%," and for judgment dismissing the complaint upon the verdict as so changed.
The trial court, in its decision, rendered on the motions, stated that in its opinion the verdict was not contradictory or inconsistent; that the damages for loss of earnings and for pain and suffering were "entirely too small for the injuries plaintiff received" and "the damages found do not conform to the undisputed proof. A fair analysis of the evidence as to plaintiff's loss of earnings exceed the $500 found by the jury. And plaintiff's pain and suffering, while entirely up to the jury as to the amount it should award, — yet from the nature and extent of the injury, the method of treatment, and the treatment plaintiff had to undergo, — the court feels it should in the matter of justice and right exceed $1,500." A new trial was ordered unless the defendant, within ten days, *Page 99 should elect to allow entry of judgment for the $2,151.15 found by the jury for doctor, hospital, medical, and nursing bills, $1,500 for loss of earnings, and $2,500 for pain and suffering, which the court felt was the largest amount a fair and unprejudiced jury, under all of the facts, proofs, and circumstances of the case, would probably assess.
Thereafter, the court rendered a supplemental decision upon the same motions for the reason that it had been intimated by the parties that its prior decision did not fully cover the motions after verdict and because it has erroneously misconceived the full import of the defendants' motions. In that decision the court said:
"Defendants' motion to change the answer of subdivision (a) of question 7 from 40% to 50%; and to change the answer to subdivision (b) of question 7 from 60% to 50% and on the verdict as amended to dismiss the plaintiff's complaint, will be granted. Generally the question of comparative negligence is purely one for the jury; but the supreme court had said that when it is of the same kind and quality, the amount of negligence no doubt would be equal. The court is of the opinion that here is such a case."
From a judgment dismissing the plaintiff's complaint, entered May 2, 1938, the plaintiff appealed. On February 7, 1939, the judgment was affirmed without opinion. Thereafter, upon plaintiff's motion a rehearing was granted. The case has been reargued. It is our opinion that the trial court should have granted the plaintiff's motion for a new trial, not because the verdict as rendered was necessarily contradictory or *Page 100 inconsistent or necessarily perverse, but because, under the facts adduced, a vital and important issue was not submitted to the jury.
The jury found both the plaintiff and the defendant negligent in the same respects, and that the negligence of each of the parties in the respects found was a natural cause of the collision. In its supplemental decision the trial court was obviously of the view that in such a situation the jury was not warranted in attributing forty per cent of the total causal negligence to the plaintiff and sixty per cent thereof to the defendant. In view of the holding of this court in Schmidtv. Leary, 213 Wis. 587, 252 N.W. 151, and in the very recent case of Hansberry v. Dunn, 230 Wis. 626,284 N.W. 556 (decided subsequent to the decision of the trial court), we are of the opinion that the trial court misconceived the law when it felt compelled to change the answers of the jury and order that the complaint be dismissed.
But regardless of that error, we are of the opinion that a new trial should have been granted because a vital issue was not submitted to the jury. The collision occurred in the nighttime on Highway No. 57 in Brown county. That highway is paved with concrete twenty feet wide. From the place of the accident the highway is straight for a distance of at least a half mile in each direction. The plaintiff was the sole occupant of his automobile and was driving toward Green Bay, in a southerly direction. The defendant was likewise the sole occupant of his automobile and was driving toward Sturgeon Bay, in a northerly direction. The collision occurred at the center of the highway and at a time when each of the automobiles was being turned to the left. The respective automobiles were badly damaged on their right fronts. The plaintiff testified, in substance, on both direct and cross-examination, that he was operating his automobile on his side of the road; that he observed the lights of the defendant's automobile when it was approximately a mile away; that *Page 101 when the defendant was within six or seven hundred feet of the plaintiff he was operating his automobile close to the black line; that thereafter, the defendant gradually angled back toward his side of the road; that when the defendant was possibly forty to sixty feet from him he angled toward him and then turned abruptly in front of him; that he put on his brakes; got control of his car as quickly as he could and turned to the left to avoid hitting the defendant; that he did not at any time turn to the right or go off on the hard shoulder alongside of the concrete because it was not necessary; that when the defendant cut directly to the west he cut directly to the east. The defendant, on the other hand, testified that he observed the lights of the plaintiff's approaching automobile and believed they were on his side of the black line and that he did not realize that there was any danger of an accident until he approached within sixty to sixty-five feet of the plaintiff's automobile. He then thought that he was going to get hit head on and wheeled his car sharply to the left and was cracked on the right-hand side of his car. He further testified that he was on his right-hand side of the black line before he turned to the left to avoid a collision.
Under this testimony, the question as to who first turned to the left and created a situation which might reasonably be regarded by the jury as an emergency, was, in our opinion, of vital importance. If the jury believed the testimony of the plaintiff, the inference would be permissible that the defendant first turned his automobile toward the plaintiff's automobile which was on its proper side of the road and permitted the plaintiff to act as in an emergency. If, on the other hand, the plaintiff's automobile was being driven along the highway on its wrong side of the road, as testified to by the defendant, then the defendant was permitted to act in that situation as in an emergency.
Questions, substantially in the following form, if submitted to a jury, duly answered and supported by evidence, *Page 102 would remove all doubts as to what happened immediately before the collision:
Q. As the two automobiles were approaching each other and before either of them was turned to its left, —
(a) Did the plaintiff, Haskins, negligently operate his automobile on defendant's side of the road?
(b) Did the defendant, Thenell, negligently operate his automobile on plaintiff's side of the road?
Q. Which of the parties, if either, first turned into or toward the roadway of the other? A. (Write in the name of such party.)
When these questions, in addition to those relating to lookout and control, are submitted and duly answered, together with proper questions relating to causation, the trial court should have no difficulty in determining liability.
By the Court. — Former judgment vacated. Judgment reversed, and cause remanded with directions to enter an order granting a new trial.
FRITZ and WICKHEM, JJ., dissent.