Day v. Pauly

Rosenberry, J. It is the contention of the defendant (1) that the trial court was in error in directing a new trial upon the sole ground that the court’s instructions as to the right of way were not sufficiently specific, such action being based upon an erroneous view of the law; and (2) that plaintiff was guilty of contributory negligence as a matter of law, which proximately contributed to produce the injuries complained of. With respect to the first contention of the defendant the court instructed the jury as follows: “Every driver of an automobile at a highway crossing has the right of way over any other driver approaching him on the left. The possession of the right of way by a driver over another driver approaching from the left on an inter [193] secting highway does not justify the possessor in plunging ahead regardless of consequences nor justify or excuse his failure to use ordinary care to avoid injury to others. Even though a person has the light of way at an intersection, he is still obligated to exercise ordinary care for the safety of himself and others.” As applied to the facts in this case, this instruction fully and clearly stated the law. The situation in the Bertschy v. Seng Case has no application to the facts in this case. The omission of the word “absolute” before the words “right of way” in the instruction as given by the court did not make the instruction erroneous, and the court was in error in so holding. The court having proceeded upon an erroneous view of the law, the order granting a new trial must be reversed. See Lange v. Olson, 185 Wis. 657, 202 N. W. 361. It appears without dispute that the plaintiff in this case, instead of making a left turn and proceeding to the right of the intersection of the highway as he was required to do by sub. (3), sec. 85.01, Stats., turned his car to the left of the intersection and therefore was at the time of the collision .at a point where he had no right to be. In other words, to use a common phrase, he cut the corner. This court has repeatedly held that such a violation of the statute constitutes negligence per se. Foster v. Bauer, 173 Wis. 231, 180 N. W. 817; Groeschner v. John Gund B. Co. 173 Wis. 366, 181 N. W. 212; Haggerty v. Rain, 177 Wis. 374, 186 N. W. 1017; Drakenberg v. Knight, 178 Wis. 386, 190 N. W. 119; Cartmill v. Whiting-Plover P. Co. 183 Wis. 651, 198 N. W. 726. It is considered, therefore, that the plaintiff under the undisputed facts in this case was guilty of contributory negligence as a matter of law and that such negligence proximately contributed to cause the injuries complained of. In this connection we think it our duty to call the attention of highway officials and police officers to the fact that they have no right or authority to divert or direct public travel [194] in a manner contrary to that prescribed by the act of the legislature. It was apparently indicated to the plaintiff that he should travel in substantially the path he took, but travelers are not warranted or justified in proceeding according to the direction of highway officials, police authorities, or local municipal bodies where such directions are contrary to the express provisions of the law, and travelers are afforded no protection because they are thus induced to violate the law. If it is thought best that the rigid rule prescribed by the statute should be varied in particular cases where the facts warrant such variation, then the legislature should authorize some one to establish lawful departures from the general rule. We find no such authority under the law of this state and none has been cited to our attention. It is claimed by the plaintiff in this case that while it would not have been impossible for him to make a left-hand turn around the center of the intersection of the highways, it was very difficult for him to do so on account of the length of his car. Even if that be true, it affords no excuse for his failure to comply with the statute, and the legal consequences of his unlawful act must be visited upon him. It is a matter of common observation that, by painting curved arrows and by other signs and indications, travelers are led into violation of the-plain provisions of the statute. Local authorities who take upon themselves the doing of such acts assume a considerable moral responsibility at least. This is particularly true with reference to travelers from outside the state, who ought to have a right to depend upon signs and directions for travel placed upon highways by those in charge of them. • We feel it our duty to call this matter to the attention of those having to do with the enforcement of the laws relating to highways as well as to the legislature. By the Court. — The order appealed from is reversed, with directions to the circuit court to enter judgment for the defendant dismissing the plaintiff’s complaint upon the merits.