Mitchell v. Williams

• Decision Date: 06 February 1951
• Citation: 46 N.W.2d 325,258 Wis. 351
• Parties: MITCHELL et al. v. WILLIAMS et al.
• Court: Wisconsin Supreme Court

Page 325

46 N.W.2d 325

258 Wis. 351

MITCHELL et al. v. WILLIAMS et al.

Supreme Court of Wisconsin.

Feb. 6, 1951.

N. Paley Phillips, Milwaukee (Irving D. Gaines, Milwaukee, of counsel), for appellants.

Dougherty, Arnold & Waters, Milwaukee, for respondents.

BROADFOOT, Justice.

The plaintiffs first contend that the court erred in its instructions to the jury. Sec. 85.40(4), Stats. 1945, which was in effect at the time of the accident, reads as follows: 'Traversing intersections. In traversing intersections where the operator does not have a clear view of approaching traffic on the intersecting highway or highways, the speed of such vehicle shall not be greater than that which will permit the operator to stop within one-half of the distance within which he is able to see approaching traffic. The provisions of this subsection shall not apply to operators of vehicles on arterial highways where the operators of vehicles on the highways intersecting such arterial are compelled to stop before entering the intersection.'

It was stipulated in open court, in the absence of the jury, that South Layton boulevard was an arterial highway with a speed limit of thirty miles per hour. When instructing the jury as to the above statute, the court omitted the last sentence thereof. The court did not instruct the jury that South Layton boulevard was an arterial highway, and explained this omission by making the following statement in the record: '* * * there are certain conditions in the statute as to when a municipality can declare a certain thoroughfare, highway or street, a through street or highway. We haven't evidence in this case that the ordinance that was here offered complies with all those statutory provisions.'

Apparently the trial court was influenced by language contained in two prior decisions of this court. In the case of Heintz v. Schenck, 176 Wis. 562, 568, 186 N.W. 610, 612, the court said: 'In applying the statute Kenwood boulevard is in practical effect two streets separated by a park.'

In the case of Geyer v. Milwaukee E. R. & L. Co. 230 Wis. 347, 349, 284 N.W. 1, 2, the court used this language: 'While crossing the north driveway it was the plaintiff's duty to look to her right again before she entered the south driveway which was in effect a separate street.' Citing Heintz v. Schenck, supra.

In both of these cases the court was considering the duty of a driver operating his car upon a street intersecting an arterial highway with lanes of traffic separated by a center boulevard such as South Layton boulevard. In the Schenck Case there was an accident at the intersection of Kenwood boulevard, a divided arterial highway, running east and west, and Maryland avenue, running north and south. In that case the defendant contended that his car, approaching from the south on Maryland avenue and reaching the south line of Kenwood boulevard...