This action was commenced in April of 1951, by Edward Minkel, plaintiff, against Howard Bibbey d/b/a Bibbey Body Works, defendant. Lawrence K. Johnston and Elmer H. Putz were interpleaded by the defendant Bibbey as defendants.

The case was tried before a jury on December 4, 1951, who on a special verdict, found that Richard Mickelson, employee of the defendant Bibbey, was causally negligent as to lookout, found Johnston also causally negligent, and assessed 25 per cent of the combined negligence to him, and 75 per cent to Johnston. The jury assessed the plaintiff's damages to his automobile at $1,250. Upon motion after verdict by defendant Bibbey, the court ordered that the answer in the special verdict as to the finding of lack of lookout on the part of Mickelson be changed from "Yes" to "No," and that judgment on the verdict as so changed be entered in favor of the defendant Bibbey, dismissing the complaint as to him with costs. Plaintiff sought no relief against Johnston or Putz. Judgment was so entered on January 31, 1952, and plaintiff Minkel appeals from said order and judgment.

Minkel, the plaintiff, left his automobile with defendant Bibbey for some mechanical adjustments. In the course of the work Bibbey's employee, Mickelson, took the car out for a road test and while Mickelson was driving north on Wilson avenue, an arterial highway in the city of Rice Lake, a collision with another automobile occurred at an intersection of Wilson avenue with an east-and-west cross street. The other vehicle was being operated by Johnston, an employee of Putz, and was proceeding in a westerly direction. The only eyewitnesses who testified were the two drivers.

Mickelson testified on direct examination that he saw the automobile being operated by Johnston continuously from the time Mickelson first saw it until it proceeded into the intersection, but did not identify the point from which he first saw this other vehicle. Upon cross-examination Mickelson testified:

" Q. Now, you say that you saw the Putz car how far from Wilson avenue? A. I do not know, sir.

" Q. But you saw it for some distance when driving for some distance over Wilson avenue? A. I don't know for what distance.

" Q. What would you say was the distance that you were south of Stout street on Wilson avenue when you first saw the Putz car? A. I do not know.

" Q. You have no idea as to distance?

"The Court: He testified to that three times.

" Q. Now, Mr. Mickelson, did you keep your eyes on the Putz car all the time the Putz car was being driven on from the time you first saw it? A. I had to watch the street I was driving on, too, sir.

" Q. Did you at all times keep your eyes or vision on Putz's car as being driven from the time you first saw it until the time of the collision? A. No, sir, I did not watch it at all times."

The collision occurred in the northwest quadrant of the intersection, the right front of the car driven by Mickelson striking the left side of the other vehicle diagonally just behind the front wheels thereof. Mickelson estimated his own speed was from 20 to 25 miles per hour as he approached the intersection where the accident happened. Johnston testified that as he approached the intersection from the east going west he was traveling at a speed of from 15 to 20 miles per hour, but then slowed down his car to 5 miles per hour and shifted into second gear as he entered the intersection, but did not stop for the arterial. Thus Johnston, as he entered the intersection, was traveling at a much slower speed than Mickelson. Mickelson turned the automobile he was operating sharply to the left in a futile effort to avoid the collision. Inasmuch as Johnston had proceeded nearly across the intersection before his car was struck on the left side by the front of the automobile operated by Mickelson, it gives rise to the inference that Johnston must have entered the intersection first.

CURRIE, J.

The trial court set aside the jury's finding that Mickelson was negligent as to lookout on the ground that there was not sufficient evidence to sustain such finding. No question inquiring as to whether Mickelson was negligent with respect to management and control was submitted to the jury and there was no request by plaintiff's counsel that such a question be submitted in the verdict.

The facts in this case give rise to an almost irresistible inference that either Mickelson did not keep a proper lookout, or else he failed to so manage and control the car as to avoid colliding with the other vehicle. If the learned trial court was correct in holding that there was not sufficient evidence to sustain a finding of negligence as to lookout on the part of Mickelson (a point we find unnecessary to decide on this appeal), then it is apparent that the real issue as to his negligence, i. e., the failure to exercise proper management and control, was not submitted to the jury.

The facts in the instant case are readily distinguishable from those in Clocherez v. Miller (1952), 262 Wis. 492, 55 N.W.2d 881, because in that case, unlike in the present one, the automobile traveling on the arterial had nearly crossed the intersection when it was struck in the right side by the vehicle which failed to stop for the arterial. There the driver of the car upon the arterial had observed that the other car was slowing down for the arterial and proceeded into and across the arterial relying on that `assumption, and' when he did observe that the other car was not going to stop for the arterial it was too late for him to do anything in the management and control of his car to avoid an accident. Here, taking into consideration the relative speeds of the two vehicles, the place in the intersection where the accident happened, and the fact that the front end of the car driven by Mickelson struck the left side of the other vehicle, the automobile driven by Johnston must have entered the intersection first and at a time when, if Mickelson had been keeping a vigilant lookout and exercising proper control, it would seem Mickelson could have taken effective steps to have avoided a collision.

We conclude that this is a proper case for this court to exercise its power of discretionary reversal and of granting a new trial on the ground that "the real controversy has not been fully tried" as authorized by sec. 251.09, Stats.

In Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 34 N.W.2d 116, and Hilker v. Western Automobile Ins. Co. (1931), 204 Wis. 1, 231 N.W. 257, 235 N.W. 413, this court held that any objection to the form of a special verdict is waived by failure to interpose such objection before the case is submitted to the jury. This same principle has been adhered to in our decision in the case of Fondow v. Milwaukee E. R. T. Co., post, p. 180, 56 N.W.2d 841, which is being announced at the same time as the within opinion.

Why should this court invoke its discretionary power in the instant case to grant a new trial on the grounds that the real controversy has not been tried when it did not do so in these other cases? The reason for so doing is that we are of the opinion that justice probably miscarried in the instant case in denying recovery to the plaintiff, while in the other cases mentioned this court was not convinced that there had been a probable miscarriage of justice in the result reached below. This court has been sparing in its use of the discretionary power granted by sec. 251.09, Stats., to reverse judgments on appeal and to remand the cause for a new trial on the ground that the real controversy has not been tried. In cases such as this, where the real controversy has not been tried because of the form of the special verdict submitted, we believe this power should be exercised only when the court is clearly of the opinion that there has been a probable miscarriage of justice in the trial court.

In submitting this case to the jury on the new trial, if the evidence is substantially the same as that on the first trial, questions both as to Mickelson's alleged negligence of lookout, and failure to exercise proper control and management, should be submitted to the jury.

By the Court. — Judgment reversed and cause remanded for a new trial in accordance with this opinion.