Kerlinske v. Etzel
215 N.W. 591
Wis.
1927
Check Treatment
Owen, J.

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 cаr. 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 differenсe between the two cases is that in the Suren Case the motorcycle officer was proceeding at a higher rate of speed than was the plаintiff in this case. In this case the driveway into which ‍​​‌​‌​‌‌​‌​​​‌‌‌​​​​‌‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​​‌​‌‍defendant turned her car was lеss 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 thе 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 thаn was the plaintiff in this ‍​​‌​‌​‌‌​‌​​​‌‌‌​​​​‌‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​​‌​‌‍case, because, whatever the rate of spеed in either case, it was too *39great to enable the motorcyсle officer to stop his motorcycle in time to prevent the accident. Neither can the two cases be distinguished by the fact that the driveway into the cemetery was more public in its nature than the driveway leading onto the farm premises in this case. In proportion to the number of cars that passed along the highway at the scene of the accident in thе Suren Case, probably an infinitesimal number turned into the cemetery. For this reason the mоtorcycle officer in the Suren Case was not expecting such a movement of the defendant’s car. He simply thought he could pass the car in safety аnd ‍​​‌​‌​‌‌​‌​​​‌‌‌​​​​‌‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​​‌​‌‍took his chances. The same is true in this case. To announce a rulе in this case different from that in the Suren Case would make our law a mere matter of speculation on the part of trial judges. Innumerable cases would arisе where the trial judge would be at a loss to know whether the situation was cоvered by the Suren Case or by this. It is quite plain that these two cases should be in harmony.

The question is whether the doctrine of tire Suren Case should bе applied here, or whether it should be overruled. ‍​​‌​‌​‌‌​‌​​​‌‌‌​​​​‌‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​​‌​‌‍Upon our further cоnsideration we are satisfied that the Suren Case was correctly decided, and thе rule there announced should be applied here. To be sure, therе is no statutory law requiring one driving a motor vehicle on the highway to give warning оf 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 respоnsibility for an accident such as this upon the person who intends to pass. Hе 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 tо pass. He knows that in the absence of such a warning the one *40driving aheаd has the legal right to drive onto the left-hand side of the road if he choоses, and that he may exercise that right at the very moment he is attempting to pass. This is especially true upon the highways in the country where this accident occurred. Without attempting to excuse the defendant from negligence in this case for failure to give warning of her intention to turn into> the drivewаy, we are unable to discover any reason for excusing the negligence of the plaintiff in his failure to give warning of his intention ‍​​‌​‌​‌‌​‌​​​‌‌‌​​​​‌‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​​‌​‌‍to pass the car. Wе must hold that the plaintiff was guilty of contributory negligence, and that he ,cannot recover in this case.

By the Court. — Judgment reversed, and cause remanded with instructions to dismiss the complaint.