Brunette v. Dade
| Decision Date | 24 November 1964 |
| Citation | 25 Wis.2d 617,131 N.W.2d 340 |
| Parties | Raymond F. BRUNETTE, by L. E. Vaudreuil, his Gdn. ad Litem, et al., Appellants, v. Emalyn DADE et al., Respondents. |
| Court | Wisconsin Supreme Court |
Vaudreuil & Vaudreuil, Kenosha, for appellants.
Heide, Sheldon, Hartley & Thom, Kenosha, for respondents.
Right of Way.
The trial court determined that Mr. Brunette was causally negligent as a matter of law in failing to yield the right of way. Upon this appeal, it is pointed out that when Mrs. Dade approached the intersection she came to a complete stop. It is urged that this act constituted a waiver of her right of way. It is not contended that her coming to a stop transferred her right of way to Mr. Brunette; the appellants acknowledge that right of way, being wholly statutory, cannot be transferred from one driver to a competing driver. Granger v. Mutual Service Casualty Ins. Co. (1963), 19 Wis.2d 302, 120 N.W.2d 140; Reynolds v. Madison Bus Co. (1947), 250 Wis. 294, 26 N.W.2d 653. However, it is strenuously urged that the court erred in determining as a matter of law that Mr. Brunette was obliged to yield the right of way to a driver who had stopped at the approach to the intersection even though there was no stop sign or other requirement for such stopping.
Sec. 346.18, Stats., provides that the vehicle on the left shall yield the right of way to the vehicle on the right. Mrs. Dade was driving the vehicle on the right and would normally enjoy the right of way over another vehicle which approached at approximately the same time. The statute goes on to provide:
'The operator of any vehicle driving at an unlawful speed forfeits any right of way which he would otherwise have under this subsection.'
The appellants' contention would require us, in effect, to interpret the statute to mean that one with the directional right of way may forfeit it not only by unlawful speed but by unnecessarily stopping at the threshold of the intersection. We decline to do so. In our opinion, the trial court correctly determined upon these facts that the vehicle on the left was negligent as a matter of law in failing to yield the right of way to the vehicle on the right. This is true notwithstanding the fact that the evidence shows that the favored vehicle came to a stop which was not required by the rules of the road.
Brunette's Negligence as to Lookout.
Mr. Brunette suffered retrograde amnesia as a result of the accident and had no memory as to the events just before the accident. Mrs. Dade testified that she did not see any vehicle approaching from the east, to her left. She further testified that she did not see the motorcycle before the actual crash. Nevertheless, the jury found that Mr. Brunette was causally negligent with respect to lookout, and such finding is challenged on this appeal.
The appellants rely on a claimed presumption of due care, which will be considered subsequently, and also urge that it can be assumed that Mr. Brunette observed Mrs. Dade bring her vehicle to a complete stop and thought that she intended to let him cross the intersection ahead of her.
On the other hand, the respondents refer to the fact that the Brunette vehicle struck the left side of Mrs. Dade's automobile at a time when Mrs. Dade was traveling at a very slow speed. The front of the motorcycle collided with the left side of Mrs. Dade's automobile. Respondents further point out that there were no skid marks or evidence that Mr. Brunette deviated or endeavored to stop before the impact. In our opinion, this constitutes sufficient credible evidence to support the jury's determination that there was negligence as to lookout on the part of Mr. Brunette. In Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 512, 80 N.W.2d 380, 384, this court stated as follows:
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