Bisenius v. Karns

• Decision Date: 07 March 1969
• Docket Number: No. 157,157
• Citation: 165 N.W.2d 377,42 Wis.2d 42
• Parties: James BISENIUS, Appellant, v. James L. KARNS, Commissioner of Motor Vehicles, Respondent.
• Court: Wisconsin Supreme Court

Page 377

165 N.W.2d 377

42 Wis.2d 42

James BISENIUS, Appellant, v. James L. KARNS, Commissioner of Motor Vehicles, Respondent.

No. 157.

Supreme Court of Wisconsin.

March 7, 1969.

S. A. Schapiro, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Albert O. Harriman, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

Under attack are the three Wisconsin statutes that require motorcycle operators to (1) wear protection for their eyes; ¹ (2) equip their motorcycles with handlebars that rise no more than 15 inches above the driver's seat; ² (3) wear protective headgear. ³

THE PUBLIC POLICY

We do not deal here with the wisdom or lack of wisdom of these three legislative enactments. The legislative history of these laws, in this state and others, demonstrates 'Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation * * *' ⁴

that they have dedicated proponents and equally dedicated opponents. The question before us is not what a legislature should do, but what the legislature can do. As has been said:

In reviewing statutes such as these, we begin with a strong presumption of their validity. ⁵ We are not to sit in judgment on the merits of such legislation. If the statutes here challenged do not contravene significant constitutional or inherent rights of individuals, if the classification on which they are based is reasonable, if they are within the scope of the police powers of the state, if they are appropriately related to a proper purpose of such police power, the three statutes are not to be invalidated by the judicial arm of government. Indeed, the laws are to be upheld by the courts if it is at all possible so to do.

THE TWO ISSUES

This is no shotgun blast type of attack, raising all possible challenges. No issue is raised as to the police power right of the state to control highway safety. ⁶ No challenge is made to the right to regulate motor-driven cycles as a separate class of vehicles. ⁷ The relatedness of the legislative enactments appears to be conceded in diminishing the serious consequences, but not in decreasing the incidence of highway accidents involving motorcycle drivers. ⁸ Two basic challenges are made to the validity of the three laws involved: (1) That they protect the motorcycle driver or rider only against himself, and are, therefore, outside the scope of the police power authority of the state; and (2) That they transgress constitutional or inherent rights of the plaintiff without corresponding benefit accruing to the general welfare. Both contentions rest upon the appellant's interpretation of the three statutes as doing no more than protecting cycle drivers and riders from the consequences of their own actions.

PROTECTION AGAINST SELF?

Is the sole purpose, effect and result of these motorcycle safety requirements to protect the cyclists, riders or both against themselves? Can we say that they concern or benefit in no way other persons, particularly other users of the public highways?

As to sec. 347.485(1)(a), Stats., requiring operators of motor-driven cycles on any highway to wear glasses, goggles or face shield, unless the vehicle is equipped with a high enough windshield, the challenge fails. Requiring protection for the eyes is clearly related to the accidentcausing possibility of dust, dirt, pebbles, even rain or snow, coming in contact with the unshielded eyes of a motorcycle driver. This safeguard against attention being distracted or vision being affected is clearly related to the concerns and interests of other users of the highway. If we were As to sec. 347.486, Stats., regulating the position of the handlebars, the relatedness of the requirement to other users of the highway is likewise evident. The prohibition of tilted or elevated handlebars which lift hands, wrists and arms skyward is related to the necessity of having a motordriven vehicle under proper management and control. In the split-second decisions that high speed driving calls for, such full control is related to preventing accidents and to the wellbeing of other users of the highway. Once again, in horse-and-buggy days, how high one held the reins might not concern others. Fast driving and heavy traffic have changed all that.

dealing with the cowboy on his horse in the days of the unfenced prairies, the answer might be different but not in an era of high speed vehicles and heavily travelled highways.

As to sec. 347.485, Stats., requiring protective headgear for motorcyclists, the question is much closer. The very term, 'protective headgear' implies protection of the head of the wearer. It must be conceded that this particular statute is intended primarily to diminish the severity of the accident upon the victim, himself. But can we say that such safety requirement does not affect or concern at all other users of the public highway?

If the picture that flashes to mind is that of a solitary cyclist on a deserted country road losing control and hitting, an affirmative answer seems plausible. But not all highways are deserted these days; in fact, few are. If the loss of cyclist control were to occur on a well-travelled highway, the separation between consequence and incidence is less sharp. Anything that might cause a driver to lose control may well tragically affect another driver. If the loss of cyclist control occurs on a crowded freeway with its fastmoving traffic, the verring of a cyclist from his path of travel may pile up a half-dozen vehicles.

So, as to the helmet requirement law, one question that arises is whether the presence of a protective helmet would, in some cases and under some circumstances, make less likely the diverting of attention or loss of control of the cycle by its driver. ⁹

It cannot be disputed that the driver of a motorcycle is somewhat more exposed to flying objects than someone operating an enclosed vehicle. ¹⁰

The wheels of vehicles travelling at high speeds can kick up or toss through the air pebbles or even stones of some size. Should such flying objects hit a cycle driver alongside the head, the possibility of distraction or even temporary loss of control seems to us evident. ¹¹ The Over and above the interest the state has in protecting other users of the highways from the danger of involvement in an accident, we further hold that other users of the highway have a definite and legitimate interest in seriousness of the consequences of accidents as well as in the frequency of such mishaps. Testimony in this record, not in dispute, establishes that a serious factor contributing to death and injury in motorcycle accidents is the absence of protective equipment such as helmets and goggles. In the record is the result of an Australian survey concluding that when a helmet is worn, the risk of fatality to a motorcyclist in an accident is reduced to about one-third of what the risk would be without a helmet. Are these statistics of concern only to the driver or rider whose life may be lost? Of course not. Certainly all users of a highway have a legitimate concern in not being involved in an accident at all. They also have, and are entitled to have, a definite interest in how serious are the consequences, not only to themselves but to others, of any accident in which they may become involved. Promoting highway safety is not to be limited to the prevention of accidents alone. It can include efforts to reduce the serious consequences of accidents. There is a difference between a fender-bender and an accident causing permanent injuries or death--a difference to the victim, to other drivers involved in the accident and to the community. If not, there would be no reason for requiring automobiles to be equipped with bumpers. They do not help avoid impacts, but they do cushion impacts and lessen the consequences of impact. In a comparative negligence state, with heavy responsibilities as to lookout and control placed upon all vehicle operators, the very

                possibility of bees, wasps or even hardshelled beetles flying into the head of cycle drivers is rather remote, 12 but windblown leaves or branches hitting against the bareheaded driver might well be at least a distraction.  13  One court has termed the argument justifying the helmet law because it protects against flying objects a '* * * strained effort to justify what is admittedly wholesome legislation.'  14  adding the suggestion that 'If the purpose truly were to deflect flying objects, rather than to reduce cranial injuries, a windshield requirement imposed on the manufacturer would bear a reasonable relationship to the objective * * *' 15  It well might, but choosing between available alternatives in promoting [42 Wis.2d 50] highway safety is for the legislature, not for the courts.  If requiring helmets is a protection against motorcycle drivers being hit and distracted by flying objects, such requirement need not be the only, or even the best way to accomplish the purpose of preventing such distraction to make it a proper exercise of the police power function.
                real possibility of being held at least partially responsible for an accident gives every user an interest, on other than humanitarian concerns, in provisions that lessen the probabilities of death or disability as an outcome of a highway encounter.  At least they are affected, and that is the test.  Therefore, the police power of the state may be exercised to minimize the consequences of collisions and accidents as well as to decrease the number of such collisions and accidents.
                

OUTSIDE THE SCOPE

We have held that the helment requirement statute does affect the interests of other users of public highways. So we do not reach the question of whether it is invariably and inescapably fatal to a public safety statute...