Suren v. Zuege

The following opinion was filed January 13, 1925: Eschweiler, J. A consideration of plaintiff’s own evidence in this case compels the conclusion that the verdict, so far as it found no want of ordinary care on plaintiff’s part, cannot be supported. This view of course renders it unnecessary to consider or discuss the questions presented as to the negligence of defendant as found by the jury. As plaintiff approached the first gate he blew a long blast of the horn of his motorcycle, and a car he was then overtaking stopped and let him go by. At such time the defendant’s car was more than half way over the 582-foot space between the two- entrances. Plaintiff gave no fur [267] ther signal to vehicles ahead of him after he left the first entrance. He knew of these entrances to the cemetery and had in mind the possibility of cars turning in. Forty to forty-five miles an hour on such a motorcycle made it difficult to make a sharp turn or quick stop. Plaintiff, however, as police officer, actually attempting to apprehend the driver of the automobile being driven in violation of the law ahead of defendant, was, by sub. (3), sec. 85.16, Stats., expressly exempt from the speed limitation applying to other drivers. This statutory exemption, however, while rendering him immune from prosecution or preventing the application of the rule that such excess of speed may establish a prima facie presumption of negligence, does not absolve him from the duty to exercise that which, under those circumstances and conditions, is reasonable and ordinary care for the safety of others and himself. Even though the defendant was negligent in failing to give proper notice of his intention to turn to the left, across plaintiff’s path and on into the cemetery entrance, and even though defendant was also negligent, as found by the jury, in failing to make more frequent observations to the rear— a proposition upon which we do not here pass, — yet plaintiff, driving at a rate that made impossible a quick stop or a turn to pass to the right and in rear of defendant, continued at a rate of speed at least double that of defendant to overtake the latter while covering the 580 feet that lay between the two entrances, without giving any signal or warning of his rapid approach and intention to pass. His possible absorption in the pursuit of the fleeing automobile, and overtaking it as it reached the city limits, then quite near, is the only possible, but insufficient, explanation for his failure to give such signal. v We cannot avoid the conclusion that plaintiff’s own want of care was a proximate cause of his injury, and this, under the law, defeats his right to recover. [268] By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint. A motion for a rehearing was denied, with $25 costs, on March 10, 1925.