Three automobiles were involved in an intersection collision which occurred on August 9, 1952, in the daytime. A DeSoto owned and operated by Austin R. Tyrer was being driven north on Highway 51 toward its intersection with County Highway V in Dane county. He had with him as guests Mrs. Tyrer, Myrtle Roeske, Gerald Roeske, Marilyn Roeske, Axel Haugen, and Mrs. Axel Haugen. Gerald and Marilyn Roeske and Mrs. Axel Haugen were killed as a result of the collision. The other passengers were injured. A Chevrolet owned by Peter Schmitt and operated by his son, Eloi Schmitt, was being driven east on County Trunk V toward the intersection. In the car as guests were Mr. and Mrs. Peter Schmitt and Margaret, Janet, and Lou Ann Schmitt. Mrs. Schmitt, Janet, and Margaret were injured. A Mercury owned by Ben Herheim and operated by his wife was being driven north on Highway 51 preceding the Tyrer car.

Highway 51 is an arterial highway. Standard stop signs are located on "V" on each side of 51. The vision at the southwest corner of the intersection was obscured by reason of an embankment, a sign, and a cornfield. A driver going north on 51 could not see a car approaching from the west on "V" until reaching the south line of "V."

The jury's findings that Eloi Schmitt as he approached 51 failed to stop and yield the right of way and that he approached and crossed the intersection without maintaining an efficient lookout and at an excessive speed are not attacked. The testimony as to his speed at the time of impact ranges from 25 to 30 miles per hour.

Mrs. Herheim testified that as she approached the intersection ahead of Tyrer her car was going from 30 to 35 miles per hour. There is evidence which permits the deduction that Tyrer was in his left lane at the time of impact and the inference that he was then passing the Herheim car, and that of course he was traveling faster than was Mrs. Herheim. There is also testimony that as Tyrer approached the intersection he was traveling from 50 to 60 miles per hour.

The Schmitt and Tyrer cars collided in the intersection. When it was struck by the Schmitt car, the Tyrer car bounded into the air and landed upside down in a ditch 30 or 40 feet northeast of the intersection.

Our statement of the facts is meager, but we believe that we have stated those which are material to the issues presented. Some of them are disputed, but we find nothing in the record to suggest that the jury was not entitled to believe that the accident occurred as we have stated.

All the actions were consolidated for trial and were presented here as one. The jury exonerated Mrs. Herheim. No attack is made upon the findings. Tyrer was found guilty of causal negligence with respect to passing at the intersection and speed.

Judgments were entered upon the verdict as follows: In favor of Ernest Roeske against Eloi Schmitt, Peter Schmitt, and Home Mutual Casualty Company for loss of services and society of his wife in the sum of $11,474.47; in favor of Myrtle Roeske against Eloi Schmitt, Peter Schmitt, and Home Mutual Casualty Company in the sum of $10,000; in favor of Ernest Roeske and Myrtle Roeske against Eloi Schmitt, Peter Schmitt, and Home Mutual Casualty Company for the loss of their minor children in the sum of $6,000; in favor of A. A. Haugen in his own right and as surviving husband of Mathilde A. Haugen against Eloi Schmitt, Peter Schmitt, and Home Mutual Casualty Company in the sum of $11,535.25; in favor of Marie Louise Tyrer against Eloi Schmitt, Peter Schmitt, and Home Mutual Casualty Company in the sum of $23,936.79; in favor of Mrs. Peter Schmitt against Home Mutual Casualty Company in the sum of $8,000; in favor of Margaret B. Schmitt against Home Mutual Casualty Company in the sum of $4,903.30; in favor of Janet Schmitt against Home Mutual Casualty Company in the sum of $1,500. Appropriate judgments for contribution were also entered.

The reason why judgments were not entered against Farmers Mutual Automobile Insurance Company, insurer of Schmitt, will appear in our opinion.

The Home Mutual Casualty Company had issued a policy of insurance to Austin R. Tyrer. The American Indemnity Company had issued a policy of insurance on the Herheim car. Home Mutual Casualty Company appeals.

GEHL, J.

Appellant contends that the evidence fails to support the finding that Tyrer was passing at the intersection, and that in any event if he was negligent in that respect such negligence was not causal. As appears from our statement of the facts, we are satisfied that there is support for the finding of negligence. We agree with appellant, however, that it was not a cause of the collision. By passing the Herheim car he placed his car in his left lane, at most 11 of 12 feet nearer the approaching Schmitt car. Considering the speed at which Schmitt was traveling, Tyrer's car would have been struck regardless of his position on 51. His act of passing did not of itself contribute to the collision.

The finding that Tyrer was guilty of negligence with respect to speed is attacked. There was testimony which would have warranted the jury's conclusion that as he entered the intersection he was traveling at the rate of 30 to 35 miles per hour, that he must have been going faster if he passed the Herheim car which was traveling at about that rate, and also that he was going at the rate of from 50 to 60 miles per hour. That he was traveling at the latter rate was testified to by some of the occupants of an automobile following him who said that the automobiles preceding them were moving at about the same rate as they, from 50 to 60 miles per hour.

The statute applicable is sec. 85.40(2) (a) and (b)

"(a) No person shall operate a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing and the speed of the vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and using due care.

"(b) The operator of every vehicle shall, consistent with the requirements of paragraph (a), operate at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, when passing school children or other pedestrians, and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions."

If Tyrer was passing the Herheim car at the time of impact, as the jury found he was, he certainly was exceeding the speed of the Herheim car which appellant contends was from 30 to 35 miles per hour, and was accelerating instead of reducing his speed. For the purpose of this discussion we shall assume that he was traveling at a rate somewhat in excess of 30 to 35 mile per hour. The jury was warranted in finding that he did not "operate at an appropriate reduced speed when approaching and crossing [the] intersection." We so held squarely in Lake to Lake Dairy Co-operative v. Andrews, 264 Wis. 170, 58 N.W.2d 685, which for the sake of brevity we shall hereinafter refer to as the Andrews Case. In that case one Cenefelt was driving north on Highway 96. His truck collided with one being driven east on an intersecting highway. The vision of both drivers was obscured by a cornfield. This court considered that at the time of collision Cenefelt, who had the statutory right of way, was traveling at the rate of from 35 to 40 miles per hour, the lowest rate at which Tyrer could have been found to have been driving. We held that the question of Cenefelt's speed was for the jury. The majority said (p. 174):

"Whether this was a `reasonable and prudent' speed and `an appropriate reduced speed' under the conditions then existing and considering the hazard presented by the cornfield, was a question for the jury. It could well have concluded from all the facts that Cenefelt's speed was appropriately reduced, reasonable, and prudent, and that he had the right to rely upon his right of way."

It is interesting to note that the minority would have held in the Andrews Case that under the circumstances Cenefelt should have been held negligent with respect to speed as a matter of law.

In Weber v. Mayer, ante, p. 241, 63 N.W.2d 318, the identical question was again presented. One Weber was proceeding west on Silver Spring road, an arterial highway, approaching County Trunk Y. A stop sign was located on "Y." A cornfield at the southeast corner of the intersection was of sufficient height and density to obscure the view of drivers of vehicles approaching the intersection from the east and south. One Holzhauer approached the intersection from the south. A collision occurred in the intersection. A jury found Weber causally negligent as to speed and control, and Holzhauer causally negligent as to lookout and control. Holzhauer was found to have stopped for the arterial. This court, by a unanimous decision, held the question of Weber's negligence as to speed was for the jury and said (p. 251):

". . . sec. 85.40(2) (b), Stats., requires the operator of a vehicle approaching an intersection to operate at an appropriate reduced speed,' and the jury might well have considered that even 35 miles per hour was too great a speed for Weber to have maintained in approaching the intersection having the obstructed view that this one did."

We are unable to distinguish the cases.

It is suggested that we must read pars. (a) and (b) of sec. 85.40(2), Stats., together, that the expression in par. (b) "consistent with the requirements of paragraph (a)" means that one approaching an intersection must reduce his speed to avoid a collision only with a vehicle "entering the highway in compliance with legal requirements and using due care," language contained in par. (a). Par. (b) is complete in itself, and without the necessity of going to any other statutory regulation lays down a rule of action. The expression "consistent with" does not limit the application of either (a) or (b) nor does it bring into the provisions of (b) those of (a). It means no more than that the two paragraphs should be construed to make them compatible or standing in agreement, not contradictory. If the statute were to be construed as suggested it would mean that an operator when approaching and crossing an obscured intersection may be held guilty of negligence with respect to speed and to have violated the provisions of (b) only when his competitor for the crossing is in all respects without fault. Such construction could not have been intended by the legislature.

Aside from the question as to what interpretation is to be given to provisions of the statute, however, we said in Reuhl v. Uszler, 255 Wis. 516, 522, 39 N.W.2d 444:

"Independent of statute, when the view of the driver of an automobile is obstructed, whether by reason of a grade or otherwise, the speed of the car should be so reduced that the car can be stopped within the distance the driver can see ahead."

And we quoted it with approval in the Andrews Case, supra. It should be noted that sec. 85-40 (2) (a) and (b), Stats., was in effect when both these cases were decided and that it is still in effect in its identical form.

We have no difficulty in concluding in line with the precedent cited that the jury was warranted in finding Tyrer negligent with respect to speed.

Appellant contends that the jury's finding, that Tyrer's negligence with respect to speed was causal, should not be permitted to stand. It is suggested that the question of cause was not considered by the court in the Andrews Case and in Weber v. Mayer, supra, and that, therefore, they should not be considered as authority for the contention that the question of cause was for the jury. The answer to that suggestion may be stated rather simply — it does not seem likely that when the court spoke of negligence in those cases that it was concerned with anything less than actionable negligence, or that the court in considering the question of liability, was unaware that, to establish liability on the part of one guilty of negligence, such negligence must contribute to the result. If in those cases the court had determined that it had not been shown that the negligent speed of the operator did contribute to the result, there would have been no occasion to discuss the question of negligence. In those cases, as in all negligence cases, the court's concern is with the question of legal responsibility for harm done and with all of the elements required to fix such responsibility.

Assume the improbable, however, that we did not consider the question of cause in the Andrews Case. Without precedent, we are still required to hold that the question as to cause was for the jury. Tyrer did not reduce his speed; he did not reduce it so as to avoid the precise result which the legislature intended should be avoided. On the contrary, the jury was warranted in concluding that he accelerated it in order to pass the Herheim car. In Restatement, 2 Torts, p. 1163, sec. 432, comment c, it is said:

". . . if the actor's negligence, either of act or omission, results in harm of the sort from which the duty was designed to protect the other, his negligence may be regarded as a substantial factor in bringing about the harm in spite of the fact that the same harm might possibly have been sustained had the actor not been negligent. In order to prevent the actor's negligent conduct from being a substantial factor, it must clearly appear that the required precautions would have proved unavailing or that the harm would have been sustained even had the negligent act not been done."

Tyrer's failure to reduce his speed, as the statute and the rule of Reuhl v. Uszler, supra, require, rendered it impossible for him to so control his car as to avoid that result. At least, the jury was properly permitted to infer that it was a substantial factor in producing it. Paluczak v. Jones, 209 Wis. 640, 245 N.W. 655; Kilcoyne v. Trausch, 222 Wis. 528, 269 N.W. 276.

What is proximate cause is ordinarily a question for the jury if the evidence is conflicting or if different inferences can be drawn from it. Schultz v. Brogan, 251 Wis. 390, 29 N.W.2d 719, and "if the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury." Sec. 434, comment c, Restatement, 2 Torts, p. 1172, quoted with approval in Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 233, 55 N.W.2d 29.

A state of facts similar to that presented here appeared in Neuser v. Thelen, 209 Wis. 262, 244 N.W. 801. The car of one Neuser driving east on a state trunk highway collided with one being driven south on an intersecting road by one Thelen. The court was concerned with the question whether Neuser had been causally negligent with respect to lookout. In quoting from the opinion we substitute in brackets the pertinent portions of sec. 85.40(2) (b), Stats., for the court's references to Neuser's responsibility as to lookout. The court said (p. 269):

"We then have the simple question, Does one exercise ordinary care who . . . [fails to operate at an appropriate reduced speed when approaching and crossing an intersection]? It is manifest that he does not. It is argued that Neuser had the right of way under the statute and might rightly assume that a car approaching the intersection would yield to him. But had he [operated at an appropriate reduced speed] . . . he would have had control of his car and been able to avoid collision. . . . He not only failed to use ordinary care to . . . [reduce his speed], but this failure was a proximate cause of the collision. This seems too plain for reasonable controversy."

The duty of an operator upon an arterial highway to drive at an appropriate speed when approaching an intersection is just as clearly stated in the statute as is his duty, declared in the numerous decisions of this court, to maintain an efficient lookout.

That one approaching an intersection, even on an arterial highway, is not excused from obeying the rules of the road, is elemental. He is under the legal duty, even in the absence of statute, to use reasonable care to avoid an accident. Although he has the right of way and although drivers on intersecting streets are required to stop before entering the intersection, the duty is still his to exercise reasonable care. He may assume that an approaching driver will stop in accordance with his duty, but he may not proceed in disregard of the danger which may result from another's violation. Day v. Pauly, 186 Wis. 189, 202 N.W. 363.

The statute and the unavoidable construction given it by the court may appear to place upon the user of an arterial highway a burden which should not be his. If that be the case, the remedy should be sought in the legislature, not in the court.

The appellant contends that the court erred in refusing to give the following requested instructions:

"Applying the language of subsection (2) (b) above [referring to 85.40(2) (b) Stats.], it is for you to determine whether any of the above, consistent with the requirements of said paragraph (a), failed to operate at an appropriate reduced speed in approaching the intersection, or failed to take into consideration in determining his speed, the existence of any special hazards as to traffic then existing. The duty to drive at an appropriate reduced speed upon approaching an intersection does not mean that the driver must reduce his rate of speed because of such conditions, whatever that rate of speed may be. This duty comes into operation only when the speed being maintained is greater than is reasonable and prudent under the conditions then and there existing.

"You are further instructed that Austin R. Tyrer in approaching the intersection in question was not obliged to reduce his speed, or stop, or alter his car until it ought to have become apparent to him that an automobile on County Trunk V was not going to stop at the intersection at a point at which the driver on County Trunk V could obtain an efficient and unobstructed view of the traffic on U.S. Highway 51 before crossing the intersection.

"The duty of Austin R. Tyrer to reduce his speed ceased when no other vehicle could, in the time left for Austin R. Tyrer to traverse the intersection, comply with the requirements of the law, including stopping and looking at a point where an efficient observation could be had, and enter the intersection at or before the time, Austin R. Tyrer would reach it at his then speed, provided his speed was then reasonable and prudent and within the speed limit. The duty to reduce speed could not be re-created thereafter until such time as Austin R. Tyrer would be on notice that the driver approaching U.S. Highway 51 from County Trunk V was not going to stop before entering the intersection."

The requested instruction is erroneous in that it assumes that Tyrer was not obliged to reduce his speed as provided in par. (b) of sec. 85.40(2), Stats., "until it ought to have become apparent to him that an automobile on County Trunk V was not going to stop at the intersection at a point at which the driver on County Trunk V could obtain an efficient and unobstructed view of the traffic on U.S. Highway 51 before crossing the intersection." As we have already pointed out, par. (b) lays down a rule of action with respect to the duty of one approaching an intersection unlimited and unaffected by the provisions of par. (a). His duty is to operate at an "appropriate reduced speed," a speed which will permit him to take some effective action to avoid a possible collision, whether or not the competitor for the intersection is without fault.

The following portion of the requested instruction is erroneous for the same reason:

"The duty to drive at an appropriate reduced speed upon approaching an intersection does not mean that the driver must reduce his rate of speed because of such conditions, whatever that rate of speed may be."

There was no error in the court's refusal to give the requested instruction.

Appellant contends that a new trial should be granted on the ground of improper argument by counsel. In arguments to the jury the following occurred:

"Mr. Hall: I have sued these insurance companies in the Schmitt cases because they entered into a contract and accepted premiums for the payment of automobile insurance —

"Mr. McAndrews: If the Court please, I object to this argument as being wholly improper.

"Mr. Hall: Wait until I get through.

"Mr. McAndrews: I ask the jury be instructed to disregard that last remark.

"The Court: The motion is denied. Go ahead.

"Mr. Hall: The complaints alleged in these cases that the Home Insurance Company — the Home Mutual Casualty Company insured the deceased Tyrer. The answer admits it. The complaints allege that the American Indemnity Company was the insurance carrier on the Herheim car. The complaints allege that the Farmers Mutual Automobile Insurance Company of Wisconsin is the insurance carrier on the Schmitt car. Mrs. Tyrer in her amended complaint alleges that her husband was negligent in endeavoring to pass in an intersection. The defendant, the Insurance Company, denies that Mr. Tyrer was negligent in trying to pass in the intersection.

"Mr. Conrad: Mr. Hall, that is the defendant Home Mutual, not the Farmers Mutual."

Mr. McCusker, in his opening argument to the jury, stated:

"We are not suing, Mr. and Mrs. Roeske, the estate of Austin R. Tyrer. He is not a defendant, his estate is not a defendant, so far as we are concerned. We are suing his insurance carrier, along with the other defendants that have been mentioned, and his insurance carrier, you know, is Home Mutual, represented by Mr. McAndrews."

Certain rules have been laid down and expressions made by this court which must be considered in determining whether the remarks made by counsel constitute prejudicial error requiring a new trial: (1) Since enactment of sec. 260.11, Stats., which provides that an insurer of an automobile is a proper party defendant in an action brought on account of a claim against the insured and may be sued without joining the assured, as is the case here, it is not improper to call attention to the insurer's interest in the result of the trial. Doepke v. Reimer, 217 Wis. 49, 258 N.W. 345; Balzer v. Caldwell, 220 Wis. 270, 263 N.W. 705; (2) it must affirmatively appear that the remarks operated to the prejudice of the complaining party, Lehner v. Chicago, M., St. P. P. R. Co. 204 Wis. 558, 236 N.W. 572; it cannot be presumed that the party complaining has been injured by them, Bartlett v. Clough, 94 Wis. 196, 68 N.W. 875; (3) however improper remarks of counsel are, it is necessary to find some affirmative evidence of their prejudicial effect in order to reverse the judgment. Sec. 274.37; Standard Accident Ins. Co. v. Runquist, 209 Wis. 97, 244 N.W. 757; (4) where, at most, the remarks of counsel may have affected the jury in its consideration of the question of damages, they do not require a new trial, Ninneman v. Schwede, 258 Wis. 408,, 46 N.W.2d 230; (5) the excessiveness of an award of damages is considered as evidence that passion and prejudice have influenced it, and quite likely influenced the verdict on the issues, Hanley v. Milwaukee E. R. L. Co. 220 Wis. 281, 263 N.W. 638; but the absence of an attack upon the award is significant in considering the asserted error, Doepke v. Reimer, supra; (6) when the verdict merely resolves what has been held to be a jury question, particularly where the award of damages does not reflect the result of remarks of counsel, the court can only speculate upon the possible result of the remarks. Standard Accident Ins. Co. v. Runquist, supra; (7) "Where remarks have a clearly prejudicial tendency, the fact of prejudice usually is indicated by an excessive or inadequate award of damages or by findings that are against the weight of the evidence, and where the findings of the jury seem to be in accordance with the preponderance of the evidence and the damages assessed are moderate, it cannot ordinarily be said that the argument resulted in prejudice." Plautz v. Kubasta, 237 Wis. 198, 207, 295 N.W. 667.

As we have pointed out, the findings, except one, are supported by the evidence; no attack is made upon the jury's awards of damages, obviously for the reason that they are not considered excessive.

We find no affirmative evidence that the remarks operated to the prejudice of appellant. The application of the rules stated requires that we hold that appellant was not prejudiced by the remarks.

It is contended that the court erred in permitting Attorney Bull, in his argument to the jury, to mislead the jury as to what constitutes passing at an intersection. What we have said and held with respect to the jury's findings as to Tyrer's passing disposes of that contention. The questions should not have been submitted. The argument could not have influenced the jury's findings upon any of the other issues. If it was improper, appellant was not prejudiced thereby.

Appellant urges that the court erred in not submitting in the verdict a question inquiring whether Eloi Schmitt was negligent as to management and control. Questions as to his stopping for the stop sign, lookout, yielding the right of way, and speed were submitted and all answered in the affirmative. The contention that the additional question should have been submitted is based principally upon the fact that it appears that Schmitt did not apply his brakes or otherwise attempt to reduce his speed, and that such failure constitutes an omission properly to control his car. We believe that the issue was properly covered in the question which inquired as to his speed. A question in the verdict as to his control and management would have amounted to a duplication of questions. The control of his car was but an incident involved in connection with the evidence in relation to his other conduct in respect to his speed, stopping, lookout, and yielding the right of way. See, for instance, Briggs Transfer Co. v. Farmers Mut. Automobile Ins. Co. 265 Wis. 369, 61 N.W.2d 305, where we held that where a driver does not see what is in plain sight his negligence is one of lookout and his management and control do not enter the case.

It is claimed that a new trial is required in the interests of justice and that in that respect the cumulative effect of error should be considered by the court. As we have pointed out, there is no accumulation of error. The trial, a lengthy one, was conducted by able counsel, each of whom was, of course, seeking findings favorable to his client and each of whom appears to have been willing to let the chips fall where they might and upon either or any of his adversaries. We do not consider that a new trial is required.

At the opening of the trial, counsel for Farmers Mutual Automobile Insurance Company, insurer of Eloi and Peter Schmitt, announced that liability to the full extent of its policy limits, $30,000, was recognized and offered to have judgment entered against it in that amount with costs to date. The offer was accepted by those of the plaintiffs in the several actions who might be entitled to share in the distribution of the fund. No formal judgment was entered upon the offer and acceptance. On motions after verdict Farmers Mutual moved for an order permitting it to deposit with the clerk $30,000 for the benefit of the plaintiffs and as determined by the court pursuant to a stipulation made by the parties, and that upon the making of the deposit all actions against it be dismissed. The court granted the motion, Farmers Mutual made the deposit, and the court ordered the actions dismissed as to it, reserving however, the right to determine the costs to which the parties might be entitled. Costs were taxed against it. Distribution of the fund was made.

Appellant contends that the court erred in dismissing the actions as to Farmers Mutual and that to the extent that a new trial be granted the order of dismissal should be vacated.

As appears from the foregoing, Farmers Mutual has paid all that it might be held to be liable for in any event. It has fully discharged its liability except that its obligation under its contract to defend the Schmitts should continue in the event of a new trial. That, however, is a matter that concerns only the Schmitts and their carrier. The insurer's duty to defend is a matter arising out of the contract of insurance with which no one else is concerned.

Having discharged its full liability to the plaintiffs we see no good reason why Farmers Mutual should be retained as a party to a new trial.

By reason of the fact that we have found that the jury was warranted in finding causal negligence in one or more respects on the part of both drivers there is no need for a retrial.

By the Court. — The judgment in each of the actions is affirmed. The order dismissing the actions as to Farmers Mutual Automobile Insurance Company is affirmed.