Thе appellant contends that the charge to thе jury as to the respective rights of the parties immediаtely before the collision was erroneous and misleading arid constituted prejudicial error. A portion оf the charge was as follows:
“Now the defendant Olson was obliged to stop his automobile before entering Highwаy 16 and the exact point at which he was obliged to stop is not designated by any provision of the statute. He must сome to a stop at least at the time he reaches the stop and go sign and he must stop at such a place before entering the other highway, the artеrial highway, as will give him a reasonable opportunity tо make observation of people approaching from his left especially and from his right as well on the arterial highway. In other words, he should stop where stopping and observing will be of use to him and it is for you to determine whether or not the stop was made at a pоint where he could reasonably make an observаtion of the highway that he was about to enter. It isn’t necеssary that he stop and make an observation that will еnable him to see miles down either way on the highway he is аpproaching, but I think it is a fair statement of his duty that he is to stop at a point where he can see apрroaching cars about an equal distance from where he is on the approaching highway. If he does thаt, he has complied with the statute with respect to stopping before entering an arterial highway.”
This court hаs clearly defined the duty of a' motorist approаching an arterial highway. It has held that he must not
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only stop bеfore entering upon an arterial highway but he must stop and observe where an efficient observation may bе had.
Svenson v. Vondrak
(1930),
In this case it was the duty of the defendant to stop аt some point south of the row of trees where he wоuld have an unobstructed view of cars approaching on Highway 16 and he should have proceeded upon the highway only if he had reasonable grounds to cоnclude that he might do so with safety to himself and others. It has been held that this is true even if the approaching motorist had forfeited his right of way by excessive speed.
Paluczak v. Jones
(1932),
It is our оpinion that the instruction given by the trial court as to the duty оf the defendant upon approaching the arterial highway was erroneous; that it tended to mislead the jury; and that it constituted prejudicial error. This instruction was referred to in that part of the charge as to right of way, аnd upon that point it also tended to mislead the jury.
Other questions were raised upon the appeal, but in view оf our decision herein it is not necessary that we pаss upon them.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions for a new trial.