Mulkern v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: VINJE
• Citation: Mulkern v. State, 176 Wis. 490, 187 N.W. 190 (Wis. 1922)
• Decision Date: 14 March 1922
• Parties: MULKERN v. STATE.

176 Wis. 490

187 N.W. 190

MULKERN

v.STATE.

Supreme Court of Wisconsin.

March 14, 1922.

Error to Municipal Court, Waukesha County; James E. Thomas, Judge.

Frank Mulkern was convicted of driving an automobile at a rate of speed greater than is reasonable and proper, and he brings error. Affirmed.

The plaintiff in error, hereinafter called the defendant, was charged with violating that portion of section 1636--49, Stats, 1919, which reads:

“No person shall operate or drive any automobile, motorcycle or other similar motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of any person”

--and was found guilty. To test the correctness of the conviction he sued out a writ of error.Ray Cannon, of Milwaukee, for plaintiff in error.

Wm. J. Morgan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen. (Allen D. Young, of Waukesha, of counsel), for the State.

VINJE, C. J.

Defendant claims (1) that the conviction was contrary to the evidence, and (2) that the statute is too vague and uncertain to sustain a conviction, in that it does not define any offense with sufficient certainty to enable a jury to determine whether or not there has been a violation of the statute or to enable the driver of a car to tell when he violates it.

[1] An examination of the evidence shows that the defendant was driving a heavy Packard car down a steep hill on a slight curve at a speed of about from 20 to 25 miles an hour; that the complainant was ahead of him driving a small car at a somewhat slower speed; that just as he had partly turned out to pass complainant he noticed another car coming in the opposite direction, so he used both brakes at once to slow up. In doing so his car slewed around and skidded into complainant's car. The road had been freshly oiled and was slippery, and the hind end of defendant's car struck the end of complainant's car, which ran down the road several hundred feet then up a three foot embankment against a stone. It was in high gear till it struck the stone, when complainant turned it into neutral. Defendant's car turned over in the ditch. Defendant knew the road was oiled and slippery, and he drove down the hill with the right wheels of his car on the gravel outside the oiled part. He also knew that in order to pass complainant he must turn onto the oiled road, and that, too, at a curve. In view of this fact we deem there was a warrant for the conclusion of the trial court that defendant was driving his car at a speed in excess of that contemplated by the statute. A steep downgrade, a curve therein, and an oiled road, all spell care and a slow speed. The tendency of a car to skid under such circumstances is well known, and the speed should be such as to reduce that tendency to one as much within the margin of safety as possible. A speed of from 20 to 25 miles an hour under such circumstances may well be found to be reckless. Raymond v. Sauk County, 167 Wis. 125, 166 N. W. 29, L. R. A. 1918F, 425.

[2] It is claimed that the statute under which defendant was convicted was too vague and uncertain to sustain a conviction, in that it is impossible for the driver of a car to know whether or not he is violating it; that the fact of violation depends upon the judgment of a court or jury and not upon specific criteria contained in the act itself; that one jury may convict and another acquit upon the same state of facts. This is true, and defendant relied upon cases from Georgia in which a similar statute has been held void for uncertainty. See Hayes v. State, 11 Ga. App. 371, 75 S. E. 523;Holland v. State, 11 Ga. App. 769, 76 S. E....