I concur in the result reached in this case.
I do not agree that the trial court erred in refusing to give plaintiff’s tendered instructions Nos. 9 and 10. No. 9 merely is an abstract statement of the law that the operator of a motor vehicle upon a public highway is required to maintain a reasonable lookout for other traffic on the highway and that failure to do so would constitute negligence. No. 10 is a peremptory instruction based upon the same rule applied to this case.
The jury answered three special interrogatories favorably to defendant, as follows:
“Interrogatory Number 1:
“As the passenger car operated by the deceased approached the scene of *827the accident, was it at any time in the northbound lane of traffic?
“Yes.
“Interrogatory Number 2:
“If your answer to the foregoing interrogatory is in the affirmative, did the deceased immediately before the collision turn his motor vehicle from the northbound lane of traffic on to or across the center line of the highway ?
“Yes.
“Interrogatory Number 3:
“Did the defendant’s driver turn to his left onto or across the center line of the highway immediately before the collision?
“Yes.”
I agree with the trial court that the instructions with respect to lookout should not have been given for the reason that there is no evidence in the record and no special issue raised by the pleadings tendering the issue of “reasonable lookout” for the jury to pass upon. This was well settled in Indiana in N. Y. Cent. R. R. Co. v. Verkins, 125 Ind.App. 320, 122 N.E.2d 141, on petition for rehearing, 122 N.E.2d 738 (1954). Indeed, in that case the court held it reversible error to deny an instruction withdrawing the issue of lookout from the jury.
Assuming, arguendo, that Instructions Nos. 9 and 10 were proper, and should have been given, then I agree that the failure to do so was not prejudicial error under the facts of this case.
This appeal presents a clear case of contributory negligence as a matter of law on the part of plaintiff’s decedent, and under these circumstances plaintiff may not recover. Gamble v. Lewis, 227 Ind. 455, 463, 85 N.E.2d 629, 634 (1949). Cf. Lee v. Terminal Transport Company, 7 Cir., 269 F.2d 97, 99 (1959).
In another Indiana diversity case, where a skidding truck created an emergency situation and defendant’s driver was charged with failing to observe it coming across the highway, we held that as a matter of law defendants were not guilty of actionable negligence. Martin v. United Moving and Storage Company, 7 Cir., 262 F.2d 596, 600 (1959).