(dissenting). In answer to question 11 the jury found that the driver of plaintiff’s automobile was able to see the approaching street car so that by the exercise of ordinary care she might have avoided the collision. In answer to question 13 it was found that no want of ordinary care on the part of the driver of plaintiff’s automobile proximately contributed to cause the collision and resulting damage to plaintiff’s automobile. The trial court held that these answers were inconsistent, and accorded controlling weight to the answer to question 11. This ruling is approved by this court on the theory that the “finding of the jury in response to question 11 was of a specific fact, while the finding of the jury in response to' question 13 was of a general conclusion.”
If there is any principle of law that is thoroughly settled by the decisions of this court it is that only issuable facts should be submitted to a jury in the form of a special verdict. Wawrzyniakowski v. Hoffman & Billings Mfg. Co. 146 Wis. 153, 131 N. W. 429; Schendel v. C. & N. W. R. Co. 147 Wis. 441, 133 N. W. 830. In thfe latter case it is said:
“-Special verdicts should be so drawn that, no matter what -responsive answer is returned to any question, a judgment in favor of one party or the other can be based upon the verdict as returned.”
Question 11 submitted no issuable fact to the jury. The issuable fact to be determined by the jury was whether any want of ordinary care on the part of the driver of plaintiff’s automobile proximately contributed to cause the collision and resulting damage. Question 11 is nothing more nor less than a cross-examination of the jury. It may tend to impeach the finding of the jury that there was no contributory negligence on the part of the driver of the plaintiff’s automobile, but it does not nullify it. The conclusion of the court can be reached only on the-theory that, because the driver of the automobile could have avoided the collision, *407it conclusively follows that she was guilty of contributory negligence because the collision occurred. This can be true only upon the assumption that in a given situation there is only one course of conduct that constitutes ordinary care. I know of no such principle of law. It may be conceded that this collision could have been avoided if the driver of the automobile had stopped when she saw the approaching street car. This would have constituted ordinary care. But does it follow that because she did not stop she was guilty of a want of ordinary care? It is the settled law of this state that a person approaching a street-car track on a city street may calculate reasonably as to whether he can safely cross the track ahead of an approaching street car, and if, so exercising reasonable judgment, he attempts to cross the track and it turns out that he has miscalculated, he cannot be held guilty of a breach of duty to exercise ordinary care. Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Grimm v. Milwaukee E. R. & L. Co. 138 Wis. 44, 119 N. W. 833; Dahinden v. Milwaukee E. R. & L. Co. 169 Wis. 1, 171 N. W. 669. And the speed of the car makes no difference if in his calculations he takes into consideration the speed of the car and reasonably concludes that he may safely clear the track in view of the actual speed of the approaching street car. Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823. So it seems to me that while this collision would have been avoided had the driver of the automobile stopped when she saw the approaching street car, it does not necessarily follow that she was guilty of a want of ordinary care if, calculating reasonably, in view of the speed at which the street car was approaching, she could have reached the conclusion that she had time to clear the track, and there is no basis whatever for saying that the answer to question 11 nullifies the answer to question 13.
But in my judgment the most unfortunate feature of the opinion in this case” is the statement that “the -finding of the jury in response to question 11 was of a specific fact, while *408the finding of the jury in response to question 13 was of a general conclusion, and we are of the opinion that the trial court correctly held that the verdict was inconsistent and that under the evidence the answer to question 11 was a direct finding of contributory negligence amply sustained by the evidence.” It has been said by this court time after time that the ultimate question of plaintiff’s contributory negligence is an issuable fact always to be submitted to the jury, unless of course it be resolved as a question of law. This verdict would not have been complete without question 13. Judgment could not have been rendered on the verdict with that question left out. Question 11 submitted nothing- but an evidentiary fact which might properly be taken into consideration in determining- the answer to question 13, but, as pointed out, the answer to question 11 does not necessarily determine the answer to question 13. It seems to me that the statement above quoted from the opinion of the court is likely to leave the impression that answers to questions in the nature of a cross-examination of the jury may properly be given greater weight than its answers to questions involving issuable facts. This is not and cannot be the law. The answer to question 13 determined an issuable fact. Question 11 was an impertinence in the verdict. If inconsistent, the answer to question 11 should have been disregarded and judgment rendered in favor of the plaintiff unless the driver of the automobile was guilty of contributory negligence as a matter of law. As this court has not expressed itself upon that question, I shall not discuss it.
For these reasons I am obliged to dissent.