HALLOWS, C. J.
It is claimed that because there was no dispute that both vehicles approached the intersection at approximately the same time, the court overemphasized Strube's duty in failing to yield the right-of-way by giving certain instructions to the jury. These instructions provided that the jury could find the two automobiles did not approach the intersection at the
The second contention of Strube relates to the inadmissibility of testimony that no crest had been made because of the accident. At the trial Strube was called adversely and during the course of examination was asked if he had seen any pictures of the accident. He replied not since "we went to see the city attorney." He was also asked whether the police had taken any pictures at the scene. No objection was made to these questions but counsel for Strube apparently thought this questioning created an inference that Strube was "summoned" to the city attorney's office. For the purpose of clarification, Strobe's counsel asked him whether any arrests Were made, to which question Strube answered "No." This answer was ordered stricken as immaterial. Relying on Fields v. Creek (1963), 21 Wis.2d 562, 124 N.W.2d 599, Strube argues the door to this answer was opened by the questioning of him relating to his visit to the city attorney's office and he had a right to clarify the inference he was summoned by showing no arrest had been made.
We think the proper rule applicable is not whether the door was open but whether the answer was admissible under the rule of curative admissibility, that is, whether one inadmissibility justices or excuses another. This rule generally involves evidence otherwise immaterial. There are three different versions of the rule competing
A more important assignment of error is the refusal of the trial court to grant a new trial in the interest of justice. Strube claims the verdict is perverse and the apportionment of the negligence cannot stand. The trial court refused to interfere with the jury's apportionment of negligence on the ground it considered apportionment of negligence to be a jury function in the great majority of cases and because of the rarity of the instances in which the court could rule the contribution of the causal negligence of the parties is equal, relying on Heine v. Oswald Jaeger Baking Co. (1957), 275 Wis. 26, 80 N.W.2d 791; Maus v. Cook (1961), 15 Wis.2d 203, 112 N.W.2d 589; Bell v. Duesing (1957), 275 Wis. 47, 80 N.W.2d 821. That is undoubtedly true, regardless of how weak the argument based on "rarity" or "great majority" is. Bishop v. Johnson (1967), 36 Wis.2d 64, 152 N.W.2d 887. But, the rule is just as well settled that a new trial may be granted in the interest of justice because the verdict is against the great weight of the
However, the trial court also found the finding of the jury was not against the great weight of the evidence although two jurors dissented from the verdict. The majority of this court agrees with the view of the trial court. It is quite plain Mrs. Pruss never saw the defendant's truck. It is also quite clear the defendant never saw the Pruss car prior to entering the intersection. An autoist has the same duty to look to his left as to his right in approaching an uncontrolled intersection but since he has the duty to yield the right-of-way to an approaching car entering such an intersection from his right, it is probably more dangerous not to make an efficient outlook to his right. However, the number and respects in which a person is negligent are not determinative of the contribution of his negligence any more than the same nature of the negligence, such as lookout, necessarily determines the contribution to the accident is equal.
However, while speed is not a factor in this collision, the defendant's truck did strike the car of the plaintiff.
The writer of this opinion, however, differs with the majority on this point and believes the percentages of negligence attributed to the parties are so grossly disproportionate that they should be disapproved as a matter of law under this court's discretionary power. We need not decide the trial court abused its discretion. Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706; Barber v. Oshkosh (1967), 35 Wis.2d 751, 151 N.W.2d 739; Sell v. Milwaukee Automobile Ins. Co. (1962), 17 Wis.2d 510, 117 N.W.2d 719; Gauthier v. Carbonneau (1938), 226 Wis. 527, 277 N. W. 135. I think Mrs. Pruss who entered an uncontrolled intersection without making an efficient observation of oncoming traffic contributed substantially more than 10 percent to the cause of the accident. The writer would also extend an option to the plaintiff to accept an apportionment of causal negligence made by the court and follow the same procedure this court does in applying the Powers rule in respect to damages. The adoption of such a rule was suggested in the concurring opinion in Lawyer v. Park Falls (1967), 35 Wis.2d 308, 151 N.W.2d 68. The majority of the court, however, does not reach this question.
By the Court.—Judgment affirmed.