194 Wis. 36 | Wis. | 1927
Appellant contends that the plaintiff is guilty of contributory negligence as a matter of law in failing to give warning of his intention to pass the defendant’s car. In Suren v. Zuege, 186 Wis. 264, 201 N. W. 722, we held that a motorcycle officer was guilty of contributory negligence as a matter of law under quite similar circumstances. The only difference between the two cases is that in the Suren Case the motorcycle officer was proceeding at a higher rate of speed than was the plaintiff in this case. In this case the driveway into which defendant turned her car was less frequently used than was the driveway leading into the cemetery, into which the defendant in the Suren Case turned. These circumstances, however, do not so substantially distinguish the two cases as to make the holding in the Suren Case consistent with a holding here that plaintiff’s contributory negligence was for the jury. Such a distinction cannot reasonably be predicated upon the fact that the motorcycle officer in the Suren Case was proceeding at a higher rate of speed than was the plaintiff in this case, because, whatever the rate of speed in either case, it was too
The question is whether the doctrine of tire Suren Case should be applied here, or whether it should be overruled. Upon our further consideration we are satisfied that the Suren Case was correctly decided, and the rule there announced should be applied here. To be sure, there is no statutory law requiring one driving a motor vehicle on the highway to give warning of an intention to pass another vehicle. Neither is there any law requiring the driver of the vehicle ahead to give warning of an intention to turn to the left. No doubt a warning by either of the parties to this case would have avoided this accident. Plainly there is more reason for placing responsibility for an accident such as this upon the person who intends to pass. He is in the rear and can see what is ahead. He knows that upon his giving warning the law imposes the duty upon the one going ahead to turn to the right and permit him to pass. He knows that in the absence of such a warning the one
By the Court. — Judgment reversed, and cause remanded with instructions to dismiss the complaint.