An automobile owned by the plaintiff Florence Heinecke was damaged in a collision with a truck operated by the defendant Louis Anderson on April 4, 1951, at about 7 p. m. The automobile was driven by her husband. The car was insured by the Ohio Farmers Insurance Company and its policy contained a $50-deductible collision clause. The company paid all but $50 of the car damage and plaintiffs commenced this action in the municipal court of Fond du Lac county to recover the amount of said damage.

The defendant Louis Anderson, on the date of the accident, was the operator of a garage located on the west side of Highway 41, some distance south of Fond du Lac. He had operated this garage since 1919. Highway 41 ran in a northerly and southerly direction in front of his garage. To the south there was a hill known as "Hamilton hill." The distance from the garage to the top of said hill was approximately 1,700 feet. About 800 feet south of the garage was a driveway extending east from Highway 41 to a stone quarry. To the north the highway was level. The highway was paved with concrete. The weather was clear and the highway was dry.

Anderson had repaired a milk truck for a man who lived in Fond du Lac. After it was repaired he left it standing facing to the north, parallel with the highway, between the garage and some gasoline pumps. He left his own automobile, faced in the same direction, between the gasoline pumps and the highway. He and his wife had their evening meal in their home near the garage and then went to the garage where Mr. Anderson got into the truck and Mrs. Anderson got into the car. Anderson planned to drive the truck to Fond du Lac to deliver it to the owner. Mrs. Anderson was then to follow in the car and bring him back to the garage. Anderson started the truck, turned on the lights, and drove in a northeasterly direction to a point from four to eight feet from the west edge of the concrete, where he stopped. He looked to the north and saw no vehicles approaching and he looked to the south as far as the stone-quarry driveway. He saw no vehicle approaching nor did he see the lights of any vehicle. He thereupon proceeded in a northeasterly direction upon the highway and traveled in that direction a distance of approximately 85 feet. At that point the cab of his truck was pointed north in the east lane of the highway but the left rear corner of the truck had not crossed the center line when the car collided with the right rear of the truck.

The driver of the automobile testified that he was driving down the Hamilton hill at a speed of 50 to 55 miles per hour; that no cars were coming from the north and he did not see the truck until he was 200 feet away. He then saw only the blank side of the truck, which was dirty; he did not know where the truck was in relation to the center of the highway; he continued in a straight course and applied his brake. There were skid marks on the pavement for a distance of 75 or 76 feet from the point of collision. The driver estimated his speed at the moment of impact as 20 to 25 miles per hour.

Mrs. Anderson, sitting in the car, saw her husband proceed out upon the highway. She then looked for approaching traffic. She saw none coming from the north but looked back and saw the Heinecke car approaching from the south. She testified that at that time her husband was across the highway and that the Heinecke car was near the stone-quarry road. She waited for the Heinecke car to pass and saw the collision. She testified that the Heinecke car was traveling very fast, and that immediately after the collision she spoke to Mr. Heinecke and asked him if he was badly hurt and he answered that he didn't think so but guessed that he was going too fast.

The case was submitted to a jury on a special verdict and only questions as to Anderson's negligence were submitted, the parties having stipulated as to the amount of damages. The jury was asked to determine whether Anderson was negligent in respect to lookout, failure to yield the right of way, proper lighting, and management and control of the truck. The jury answered all of the questions in the negative, and judgment was entered on the special verdict. The plaintiffs took an appeal to the circuit court for Fond du Lac county, where the record made in municipal court was reviewed. The circuit court set aside the verdict of the jury, held that Anderson was negligent as a matter of law as to lookout and failure to yield the right of way, and entered judgment in favor of the plaintiffs and against the defendants for damages and costs. The defendants appealed from that judgment.

BROADFOOT, J.

The defendants contend upon this appeal that the claimed acts of negligence by the defendant Anderson were questions of fact for the jury and that there was ample credible evidence to support the findings of the jury. The plaintiffs still insist that Anderson was negligent as a matter of law in respect to lookout and also in respect to failure to yield the right of way. The plaintiffs contend that it was Anderson's duty as a matter of law to look as far as possible down the highway for approaching traffic and that it was possible for him to look a distance of 1,700 feet and that he only looked 800 feet. The plaintiffs also cite the following statute:

"85.18 (9) Emerging from alley or private driveway. The operator of a vehicle entering a public highway from an alley, garage, or private driveway shall yield the right of way to all vehicles approaching on such highway."

They contend that this statute must be literally applied. Such interpretation, of course, would compel a finding that Anderson was negligent as a matter of law in failure to yield the right of way.

The proper determination of this case involves the duty of the driver of a motor vehicle entering a public highway from a private driveway. These duties were defined in the case of Carlson v. Strasser, 239 Wis. 531, 2 N.W.2d 233. In that case a truck, parked parallel with the highway, was driven from a private driveway upon the public highway. In that case the court said (p. 535):

"One entering a public way from a private drive is bound to maintain a proper lookout. If he is causally negligent in the matter of maintaining such lookout that fact would indicate that he could have seen an approaching car and was consequently under a duty to yield the right of way. Neuser v. Thelen (1932), 209 Wis. 262, 244 N.W. 801. Having maintained a proper lookout and having observed conditions upon the highway, the entering driver may proceed if, proceeding with due care, he has time to take his place on the highway without interference with other users of the highway. Dahinden v. Milwaukee E. R. L. Co. (1919), 169 Wis. 1, 171 N.W. 669; Olk v. Marquardt (1931), 203 Wis. 479, 234 N.W. 723. Had respondent looked there would remain in him the duty of exercising reasonable judgment in calculating on the time and opportunity for entering."

If applied literally, the above statute would lead to absurd results. No driver could enter a public highway from a private driveway if another car was approaching. The statute does not limit the term "vehicles approaching" to those in sight. The rules laid down in the Carlson Case, supra, are standards of ordinary care to be applied by a jury to the facts and circumstances in each case.

Applied to this case, before entering upon the highway it was Anderson's duty to make a proper lookout. It was his duty by such lookout to look a sufficient distance to ascertain that anyone approaching upon the highway at a lawful rate of speed would not interfere with his entering upon and reaching his proper position upon the highway. If he did not look a sufficient distance or if he did not see a vehicle approaching within that distance, then he failed to make a proper or efficient lookout. Having made his observation, he then had to exercise reasonable judgment in calculating the time it would take him to enter and reach his proper position on the highway. If he did not make a reasonable calculation, then he was negligent. Both questions are to be determined by the jury. Anderson did not see the location of the Heinecke car at the time he entered upon the highway. Heinecke did not know where his car was when the truck entered upon the highway. Mrs. Anderson, however, was in a position where she could see the location of the two vehicles. The jury heard and saw the witnesses. It was the sole judge of their credibility. There is sufficient evidence to sustain its findings, and the court should have permitted the verdict to stand.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to reinstate the judgment of the municipal court.