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Can a person forfeit the right of way by speeding? Sometimes.

By Keith Stachowiak on May 27, 2015 // Leave a Comment

trafficAlthough the general rule at intersections is that the vehicle on the left shall yield the right-of-way to the vehicle on the right, “[t]he operator of any vehicle driving at an unlawful speed forfeits any right-of-way which he or she would otherwise have under this subsection.” See Wis. Stat. §346.18; see also Johnson v. Firemen’s Fund Indem. Co., 264 Wis.358, 59 N.W.2d 660 (1953).

However, if you are involved in a collision with a driver who forfeits right-of-way, that does not mean you are off the hook. Right-of-way at an intersection cannot be transferred from one driver to a competing driver. See Brunette v. Dade, 25 Wis.2d 617, 131 N.W.2d 340 (1964). Even if one driver forfeits right-of-way, that right does not transfer to the other driver. See Hernke v. Northern Ins. Co. of New York, 20 Wis.2d 352, 122, N.W.2d 395 (1963). Where one driver forfeits right-of-way, neither driver has the right-of-way. See Pagel v. Kees, 23 Wis.2d 462, 127 N.W.2d 816 (1964). Where one driver drives in an unlawful manner, the other driver is not relieved from his or her duty of care.

In Drake v. Farmers Mut. Auto. Ins. Co., 22 Wis. 2d 56, 62, 125 N.W.2d 391, 394 (1963), two vehicles approached an intersection at about the same time. One was driving 5 miles per hour, and the other was driving 20-25 miles per hour. In a subsequent ruling, the court held that both drivers could be held negligent as to lookout. See Drake v. Farmers Mut. Auto. Ins. Co., 22 Wis.2d 56, 128 N.W.2d 41 (1964). All drivers approaching an intersection must drive at an appropriate, reduced speed in response to the actual and potential hazards then existing. In snowy weather, for example, driving below the posted speed limit can still be considered driving at an excessive speed for the conditions present at that time. The word “unlawful” as used in Wis. Stat. § 346.18 does not mean contrary to statute or ordinance, but means unauthorized by law. See Johnson v. Firemen’s Fund Indem. Co., 59 N.W.2d 660, 264 Wis. 358 (1953).

In short, just because one driver is driving at an excessive speed and forfeits the right-of-way due to speed, the forfeiture does not pass the right-of-way to the other driver. If there is a collision, both drivers can be considered negligent.

When it comes to right-of-way on a traffic artery, as opposed to an intersection, speed does not result in a forfeiture. See Boller v. Cofrances, 166 N.W.2d 129, 42 Wis.2d 170 (1969). Speed may be considered as an element of negligence, however. See also Magin v. Bemis, 116 N.W.2d 129, 17 Wis. 2d 192 (1962).

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