Ashton v. P. F. Coughlin Co.

179 Wis. 307 | Wis. | 1923

Crownhart, J.

This case presents an unusual situation. Two men, the plaintiff and the rollerman, occupied a space in a public street, where each of them had a right to- be, each being absorbed in his own business and entirely oblivious to the rights of the other. Generally speaking,, construction work on a barricaded public street is sufficient notice to the public to keep off. The rights of the contractor and his crew are superior, on the barricaded street, to that of the public, because of the fact that the contractor occupies a public position in that he is doing the work for the public and for its benefit. It was the custom of the co-employees of the rollerman on this job to keep out of the way of the road roller, giving the driver an opportunity to watch his machine at all times in order to perform his work satisfactorily. The roller ran from two to four miles an hour. It made more or less .noise, and any one on the lookout would readily heai* it and be able to step aside. The driver had no reason to anticipate that a man possessed of all his faculties would step into- the street and turn and gaze at the buildings without giving any attention to the operations of the roller. Perhaps the plaintiff had a right to anticipate that- if the roller came his way the driver would be on the lookout , and not run over him: But he had no right to rely on the rollerman keeping a lookout behind all the time, for that would be impossible. If we find the rollerman guilty of negligence we also must find the plaintiff guilty of negligence. The negligence of the plaintiff .was certainly as great as that of the rollerman. He had observed the progress of the work from the side of the street for five minutes; he could hear the exhaust from the roller as it was in operation; he could see the roller more readily than the driver could see him; and he knew the street was barricaded against public travel. It follows that he cannot recover.

By the Court. — The judgment is reversed, with directions to dismiss the complaint.