Hamm v. Miller

• Decision Date: 30 December 1949
• Citation: 256 Wis. 192,40 N.W.2d 387
• Parties: HAMM, v. MILLER et al.
• Court: Wisconsin Supreme Court

Page 387

40 N.W.2d 387

256 Wis. 192

HAMM, v. MILLER et al.

Supreme Court of Wisconsin.

Dec. 30, 1949.

Vaudreuil & Vaudreuil, Kenosha, for appellants.

R. Stanley Kelly, Burlington, Cavanagh, Mittelstaed, Sheldon & Heide, Kenosha, for plaintiff and respondent.

Quarles, Spence & Quarles, Milwaukee, Arthur Wickham, Milwaukee, of counsel, for defendants and respondents.

HUGHES, Justice.

The evidence was that the two cars approached the intersection at approximately the same time, Miller from the east and Newland from the south.

Miller testified that as he approached the intersection he slowed his automobile so that he was not exceeding ten miles per hour as he reached the crosswalk east of the intersection. He then noticed the Newland car about seventy-five to one hundred feet south of the intersection on 68th street 'coming fairly fast. I couldn't tell you just how fast he was going.' Miller then slowly increased his speed and entered the intersection. He testified that as he again saw the Newland car bearing down on him, he tried to more rapidly accelerate his speed and that he almost cleared the east half of 68th street before being struck by the Newland car.

That the jury verdict must be sustained if there is credible evidence which under any reasonable view admits of an inference that supports the jury's finding, is not challenged. Better Properties, Inc., v. Kocher, 1941, 239 Wis. 294, 1 N.W.2d 157; O'Leary v. Buhrow, 1946, 249 Wis. 559, 25 N.W.2d 449; Van Galder v. Snyder, 1948, 254 Wis. 120, 35 N.W.2d 187. It is further conceded that if there was such negligence, it would be momentary and not assumed by the guest. Appellant strenously contends, however, that there is no evidence that Miller breached any duty as a driver because he had the right of way.

Right of way is probably one of the most misunderstood of all driving regulations. Many drivers consider it to be absolute. That it is not has often been pointed out in opinions of this court. Lozon v. Leamon Bakery Co., 1925, 186 Wis. 84, 202 N.W. 296; Carson v. Green Cab Co., 1925, 186 Wis. 566, 203 N.W. 394; Roellig v. Gear, 1935, 217 Wis. 651, 260 N.W. 232; Forecki v. Kohlberg, 1941, 237 Wis. 67, 295 N.W. 7, 296 N.W. 619. As said by this court in Reynolds v. Madison Bus Co., 1947, 250 Wis. 294, 304-305, 26 N.W.2d 653, 658: 'In connection with the general subject of right of way we deem it advisable to make one further observation. When two cars approach or enter the intersection at approximately the same time the driver to the left has a statutory duty to yield the right of way. The driver to the right is negligent if he insists upon claiming his right of way where it is evident that his competitor for the intersection is not going to respond to this duty. These are separate items of...