Donahue v. Western Casualty & Surety Co.

Steinle, J.

(dissenting). On the basis of competent evidence in this record the jury was warranted in determining that Theodore C. Egelhoff was not confronted with an emergency situation; that John Donahue, the deceased, negotiated no sudden turn of his truck into the pathway of the oncoming Egelhoff vehicle; that Theodore C. Egelhoff’s failure to exercise a proper lookout after his first observation of the Donahue truck, may well have been a greater factor in producing the collision than was Donahue’s failure of lookout and management of his truck. The verdict of the jury ought not to have been disturbed. For these reasons I am not able to join in the expressed view of the majority that the deceased, John Donahue, was as a matter of law at least as negligent as the respondent, Theodore C. Egelhoff. This situation falls within the rule declared in Czerniakowski v. National Ice & Coal Co. 252 Wis. 112, 31 N. W. (2d) 156, to the effect that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are' doubtful *199and uncertain, and there is any credible evidence which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is for the jury should be firmly adhered to and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned.