Drake v. Farmers Mutual Automobile Insurance

Wilkie, J.

(dissenting in part on motion for rehearing). I concur with the majority’s position as to the standard to be applied in determining whether or not the right-hand driver at an unguarded intersection has appropriately reduced his speed as he approached or crossed the intersection. I also agree with- the majority, in view of the standard, that there was no evidence to support a jury finding of “unlawful speed” on the part of Drake, assuming such finding was made by the jury.

My disagreement is confined to the majority’s treatment of the apportionment of negligence in which the jury assessed 60 percent of the fault to Drake and 40 percent to Holewin-ski. I would not disturb the jury’s apportionment.

The jury’s findings were contained in an ultimate-fact verdict. It found that Drake was “negligent in the operation of his automobile” and ascribed 60 percent of the total negligence thereto. The jury made no finding as to speed or any other individual item or items of negligence. It is entirely consistent with the jury’s verdict that they based their 60 percent assessment of negligence upon Drake for his greater negligence as to lookout.

In Granger v. Mutual Service Casualty Ins. (1963), 19 Wis. (2d) 302, 120 N. W. (2d) 140, the court overturned a trial court’s determination that the left-hand driver’s negli*66dgence (management and control) was at least equal to that of the right-hand driver (speed) and held that it was for the jury to determine which driver’s negligence was the dominant cause of the accident. I see no reason for not following the same procedure here.

I am authorized to state that Mr. Justice Dieterich and Mr. Justice Gordon join in this opinion.