The first basic issue raised on this appeal is whether there is credible evidence to support the jury verdict that there was causal negligence against the defendant, Frank Harvey.
Both drivers were found negligent by the jury in an ultimate fact verdict and it assessed the negligence 90 percent against the defendant-host and 10 percent against the defendant driver of the car approaching in a southerly direction on the other side of the interstate highway (the lanes being situated beyond the median).
The trial court gave instructions on speed and also on lookout. Our review here is limited to sustaining the jury's verdict if there is any credible evidence which, under any reasonable view, fairly admits of inferences to support the verdict.
The court gave the usual instruction as to speed
The appellants urge that the court must find that a speed of 40-50 miles per hour on a highway such as I-94 under the conditions prevailing at the time is not excessive as a matter of law. Although courts are reluctant to tamper with a jury verdict in this area, in the present case it cannot be ascertained from the verdict that the jury considered the speed of the Harvey vehicle to have been too fast for conditions then prevailing. Surely a driver on a divided highway is not bound to foresee that drivers on the opposite side of a median may lose control and invade the opposite lanes of traffic and thus is not bound to maintain such a rate of steed as necessary to avoid a collision should one do so. "Maintaining a given rate of speed on one's proper lane of travel on a highway is not negligent as excessive unless the circumstances render it reasonably likely to result in loss of control or it is voluntarily maintained when it is reasonably to be anticipated that the lane of travel may be invaded."
It has also been held by this court that it is negligent for the driver of an automobile to proceed at a speed at which he cannot stop his vehicle within the distance he can see ahead.
The evidence here did not support an instruction as to speed with reference to the defendant Harvey. Any finding of causal negligence, however, is sufficient to support the verdict. Therefore, we must consider whether there is credible evidence to support a finding that the defendant Harvey was causally negligent as to lookout.
It cannot be said that as a matter of law the duty of maintaining a careful lookout on an interstate highway does not include the duty to observe objects in the median, especially when one is traveling (as Harvey was here) in the lane closest to the median. That there is a duty of lookout beyond the confines of the roadway being traveled was recently emphasized in the case of Smith v. St. Paul Fire & Marine Ins. Co.
"In analyzing plaintiff's argument we must start from the very well-established premise that it is the absolute duty of every operator of a motor vehicle to exercise ordinary care to keep a careful lookout ahead and about him to avoid an accident." (Emphasis supplied.)
There are other cases that are pertinent.
In Brown v. Travelers Indemnity Co.
"In order to comply with requirements of ordinary care as to lookout, Mrs. Brahmstead was required to keep a careful lookout ahead and about her, the extent of which was dependent upon the conditions and circumstances then present. Prudent lookout may require an observation beyond the confines of the road." (Emphasis supplied.)
In the O'Connor Case the defendant admitted being aware that the area along the road was inhabited by deer and being familiar with deer-crossing signs in the area.
And in Lisowski v. Milwaukee Automobile Mut. Ins. Co.
"... We cannot hold a driver in traffic in a business district fulfils his duty of lookout by only looking ahead." ... How far under such circumstances the driver must keep a lookout to the side is a question of fact but is not applicable here. If Flury had kept a proper lookout he would have seen the child sooner than he did with only a slight deviation from looking straight ahead."
The case of Paulus v. Truskowski
This court on review of the case found that the testimony most favorable to the plaintiff indicated that the defendant did not see the car until it struck the unidentified truck and was 150 to 200 feet ahead, whereas a passenger in the defendant's car saw the lights of the invading car 500 feet ahead and as it traveled about 70 feet on the boulevard. The plaintiff contended that since it was possible for the defendant to have seen the car driven by Wade sooner than he did he should be held guilty of negligence as to lookout as a matter of law. This court said:
"We have no difficulty in concluding that Truskowski was not guilty of negligence with respect to lookout as a matter of law. We are aware of no rule that requires the driver of an automobile on a boulevard highway, the lanes of which are separated by a centerpiece, to keep a lookout to his left and across the centerpiece so as to observe vehicles traveling in the opposite direction. There was no obligation under the law on the part of Truskowski to have observed the car driven by Wade
In Paulus the court was concerned only with the duty to observe the opposite lanes of traffic. Even the respondents agree here that there is no such duty. However, Paulus does not hold that there is no duty to observe the median. In fact, Paulus does not actually discuss the duty of peripheral vision of a driver on a divided highway, but the implication is that a finding of negligence might be made but could not be considered causal.
We, therefore, are convinced that there was evidence to support the jury determination that Harvey was negligent as to lookout.
The next question is, of course, whether that negligence was a substantial factor in causing the collision.
Negligence excused as a matter of public policy.
Notwithstanding the negligent failure of Harvey to maintain a completely adequate lookout, we are satisfied that this is one of those unusual cases in which a judicial determination should be made in favor of holding the defendant Harvey free of any effect of his negligence.
Several other issues are presented on this appeal. We do not reach these issues because of the disposition made of this matter.
By the Court.—Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.