(dissenting). I am impelled to respectfully dissent in this case on the ground that there was credible evidence in the record to sustain the jury’s findings of causal negligence on the part of the defendant Bollig as to both lookout and speed.
*88According to Bollig’s testimony, the Johnson car was first sighted by Bollig after the latter had “come out” of the curve and had straightened his car out. He estimated the distance to the Johnson car as then being 150 feet, and further testified that the Bollig car thereafter traveled 50 feet to the point of impact, which would mean that the Johnson vehicle must have traveled 100 feet in the same space of time. Bollig admitted that he paid no particular attention to what portion of the highway the Johnson automobile was traveling.
The photographs offered in evidence in behalf of the plaintiffs clearly establish that it was physically possible for Bollig to have seen the approaching Johnson automobile considerably sooner than Bollig did. For example, the photograph constituting Exhibit 25 was taken 120 feet west of the point of impact so that the camera was pointed at the curve in the highway around which the Bollig car had traveled, and shows to good advantage the terrain of the land lying within the interior angle of the curve. Inasmuch as the point of impact was at least 50 feet west of the curve, Exhibit 25 shows at least 170 feet of the highway proceeding westerly from the curve and at least 200 feet of the highway northerly from the curve, and all the land lying between. This photograph shows the intersection to be “open” with no tree standing in the land lying within the interior angle of the •curve. There are a few low-growing bushes but these are not high enough to obstruct the view of any one driving an automobile on the highway who was looking across the interior angle of the curve to the highway beyond. The only trees visible are on land marking the outside of the curve, and not the interior angle thereof. The jury, therefore, had the right to infer from such photograph that Bollig could have seen the Johnson car before Bollig had reached, the curve. The fact thát Bollig never noticed the position of the *89Johnson car in the highway until the impact also is convincing evidence that even after he did sight it he made no efficient observation with respect to it.
As to the question of proximate cause, if it was possible for Bollig to have seen the Johnson car much farther back from the point of impact than 50 feet (and the jury had the right to so infer from Exhibit 25), then Bollig had ample time to have turned his car partly onto the shoulder and thus avoided the collision. The photographs disclose the several feet of good usable 'shoulder all along the north side of the highway.
As to the matter of causal lookout, this case seems to be clearly governed by our decision in Whirry v. Rural Mut. Casualty Ins. Co. (1954), 267 Wis. 302, 64 N. W. (2d) 841. As well pointed out in the opinion in that case, the emergency rule does not apply in favor of a driver whose own negligence as to lookout has contributed to cause the emergency.
As to the issue of speed, sec. 85.40 (2) (b), Státs., imposed the duty upon Bollig to operate at an “appropriate reduced speed . . . when approaching and going around a ctirve.” He estimated his speed at not over 30 miles per hour going around the curve, while Gottfried Bachmann, a passenger in the car, estimated such speed from 35 to 40 miles per hour. The jury had the right to find even that speed was negligent if because of the sharpness of the curve such speed prevented Bollig from having his car under such control as to enable him to make a proper observation of approaching traffic such as the Johnson car. The inescapable inference to be drawn from Bollig’s testimony is that he was prevented from making such proper observation by his engrossment in the immediate task of negotiating the curve, and that his speed was a contributing factor to this situation. In other words, if he had been traveling slower around the curve *90than he did he would have been enabled to have kept a proper lookout ahead and to have turned his vehicle out of the path of the Johnson car which evidently was “cutting the corner” in attempting to proceed around the curve.
The plaintiffs would have the right to recover judgment on the verdict against the defendant Bollig and his insurance carrier if Bollig was causally negligent as to either speed or lookout inasmuch as there is no issue of comparative negligence as between plaintiffs and Bollig.
It is of some significance to note that at the conclusion of the taking of testimony, counsel for defendant Bollig and his insurance carrier moved for a directed verdict as to such defendants, and, in ruling thereon the trial court commented as follows:
“I think that perhaps there is merit in it, and yet I think it is a clear question for the jury as to speed, lookout, and driving on the right-hand side of the road. I think the evidence is very slight as to the negligence of Mr. Bollig on the question of yielding the right of way but the court feels it would be error not to submit it in view of the fact one of the witnesses testified that both were driving in the middle of the road. Motion denied at this time.”
It is thus apparent that the trial court at that time thought that a jury issue was presented as to the possible causal negligence of Bollig with respect to speed and lookout, and that»the issue as to which he was in doubt was that of whether Bollig was traveling on his own proper side of the highway.
For the reasons stated, I would reverse and remand with directions to reinstate the verdict and grant judgment thereon in behalf of plaintiffs.