Blom v. Kumbier
| Decision Date | 05 March 1957 |
| Citation | 275 Wis. 227,81 N.W.2d 528 |
| Parties | August BLOM, Respondent, v. Robert L. KUMBIER et al., Appellants. |
| Court | Wisconsin Supreme Court |
Holden & Schlosser, Sheboygan, for appellants.
Henry P. Hughes, Oshkosh, for respondent.
Appellant asserts prejudicial error in instructing the jury and in refusing to submit a requested question. We consider however that the judgment should be affirmed.
1. Instruction on right-of-way. The jury was instructed in substance that if Blom made a full stop in response to the arterial stop sign, then he had the right-of-way, and the question whether defendant was negligent in respect to yielding the right-of-way should be answered. Appellants contend it was error to give this instruction without the qualification that the stop must have been made where the driver could make an efficient observation of traffic on the intersection highway, and that he should actually make such an observation. Kraskey v. Johnson, 266 Wis. 201, 207, 63 N.W.2d 112, is cited.
Sec. 85.18(4) Stats. 1953 provides that a driver who has stopped as required by sec. 85.69 () on entering the arterial, as well as drivers on the arterial, shall be subject to the provisions of sec. 85.18(1), which provides that 'when two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right * * *.' It is not contended that these statutory provisions are inapplicable to an acute-angle intersection of the 'Y' type such as that here involved, and accordingly we treat them as applying.
In the present case Kumbier's car was the vehicle on the left, and as the jury found that Blom stopped at the stop sign, Blom had the statutory right-of-way unless he lost it by his conduct while and after stopping.
In Kraskey v. Johnson, 266 Wis. 201, 207, 63 N.W.2d 112, which involved an ordinary right-angle intersection, it was held that sec. 85.18(4), Stats. requires more than a mere stop for the arterial, that it is also the driver's duty to observe at a point where observation would be efficient, and that the driver on the left had the right to assume that the one on the right would not only stop but would not 'plunge ahead into the intersection' until he had made an observation whether he could do so safely.
In the present case there is no evidence that Blom was not in position to make an efficient observation of on-coming traffic from the left at the point where he stopped at the stop sign, and the photographs in evidence indicate that he had a clear view of the highway to the north. Neither do we find any evidence that Blom 'plunged ahead' without regard to safety after stopping at the stop sign, so as to forfeit the right-of-way. He testified that he came to a full stop, looked up the road as far as he could see, waited until two cars from the north got past, started in second gear, and was only going 20 miles per hour when he was hit nearly 200 feet farther on. His testimony was undisputed save as it is claimed to be inconsistent with the implications of the skidmarks. In finding that he stopped at the stop sign, the jury must have considered the skidmarks as having little weight.
Blom was concededly guilty of negligent failure to maintain a proper lookout as he approached the intersection of the traveled portions of the highway where his path and Kumbier's would cross; but that fact alone would not have warranted the jury in finding that he did not make a proper observation when he stopped at the stop sign or that he recklessly plunged ahead at that point without regard to safety. Kumbier was admittedly traveling at least 50 miles per hour and hence must have been several hundred feet north of the intersection when Blom started from his stop at the stop sign, more than 180 feet from the point of collision.
2. The instructions on right-of-way are further criticized as assuming that the vehicles approached or entered the intersection at approximately the same time, and not permitting the jury to find that Kumbier entered the intersection first.
We find no error. The court clearly told the jury that if the driver from the left is in the intersection ahead of the driver from the right by such a margin that it cannot reasonably be found that the two vehicles either approached or entered the intersection at approximately the same time, then neither driver has the statutory right-of-way.
Moreover, the evidence would not have sustained a finding that Kumbier was in the intersection first and that Blom did not enter at approximately the same time. The collision occurred less than 100 feet from the north end of the intersection, on the interpretation of 'intersection' most favorable to Kumbier, and it is undisputed that Kumbier was traveling at least 50 miles per hour, which is 73 feet per second. Hence Kumbier could not have entered the intersection more than an instant ahead of Blom, and so they entered it at 'approximately the same time.'
Criticism is also voiced of the fact that the court read to the jury sec. 85.18(1), Stats.1953, since renumbered § 85.18(5), and then stated that the latter part of the subsection is possibly not germane because not involving a situation arising in the instant case. The last sentence of the statutory provision is as follows:
'* * * The driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection and turning therein to the left across the line of travel of such first mentioned vehicle; providid, the driver of the vehicle turning left has given a plainly visible signal of intention to turn as aforesaid.'
Kumbier cannot have been...
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