Henschel v. Rural Mutual Casualty Insurance

Steinle, J.

{dissenting). I must respectfully dissent on the ground that Henschel’s negligence as to lookout must be held causal as a matter of law.

As was recently pointed out in our decision in Plog v. Zolper (1957), 1 Wis. (2d) 517, at page 525, 85 N. W. (2d) 492, an operator of a motor vehicle may be guilty of negligence with respect to lookout, if, seeing an approaching vehicle, his observation is so defective as to miscalculate the speed thereof. If the found negligence on the part of Henschel as to lookout was based by the jury on the conclusion that Henschel did not see the Jungbluth car coming from the east as soon as he should have, then it follows that such negligence was a substantial factor in producing the accident, and causal as a matter of law. On the other hand, as suggested by the majority opinion, if Henschel did sight the approaching Jungbluth car to the east at a point where an ordinarily prudent driver would have seen the same, then such found negligence as to lookout must have consisted in his miscalculation of the speed at which it was approaching. Henschel’s mistaken effort to cross the intersection in front of the approaching Jungbluth car based on such miscalculation could not help but be a substantial factor in causing the accident.

The failure of the jury to find that Henschel’s negligent lookout was causal necessarily affected its answer to the *40comparative-negligence question, which error can only be corrected by a new trial.

I am authorized to state that Mr. Justice Currie concurs in this dissenting opinion.