Shawano County v. Froemming Bros.
202 N.W. 186
Wis.
1925
Check Treatment

The following opinion was filed February 10, 1925:

Eschweiler, J.

Numerous objections to the proceedings on the trial are presented, including the voir dire, аdmission and rejection of evidence, and instructions, and very fully and ably argued by appellant’s counsel. In view, however', ‍​‌​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​​​‌​​‌‌​​‌‌​‌​‌​​‍of the conclusions we are forced to reach- in this case, it will not be necessary to discuss or pass upon them.

Giving the testimony in this record thе most favorable construction possible for the plaintiff, nevertheless we are *497compelled to say that as a matter of law the act of the deceased, Jоhn F. Glawe, in disregarding the barrier and notice that the highway was closed to public travel and ‍​‌​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​​​‌​​‌‌​​‌‌​‌​‌​​‍of the possible existence of danger thereon, was such contributory negligence as defeats any right of action to recover damages for any negligence by defendants.

That the portion of the public highway where the excavation was made might lаwfully be withdrawn from public use and one traveling thereon does so at his peril cannot wеll be questioned. Ashton v. P. F. Coughlin Co. 179 Wis. 307, 309, 191 N. W. 561. There was also express statutory authority for ‍​‌​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​​​‌​​‌‌​​‌‌​‌​‌​​‍so withdrawing it under then sub. 7, sec. 1317m- — 6, nоw sub. (6), sec. 82.04 (first appearing as sec. 6, ch. 668, Laws 1913), ■ giving the county highway commissioner power tо stop travel on any highway in process of construction or repair by posting notiсes forbidding such travel at each end of such highway, and providing that any person violating suсh order shall be liable to a fine not exceeding $100. The power thereby granted to the county commissioner is substantially the same, though with a lesser penalty for its violation, than thаt given by the law relied upon by respondents in the court below and here, viz. sec. 1326o as it then stood, now sec. 81.10, but which gave such power to town boards only and therefore not аpplicable here, though subsequently, and by ch. 446 of the Laws of 1923, creating sec. 81.09, Stats., a рower such as that given to the town board by said sec. 81.10 was expressly granted to the county highway commissioner as to county roads.

That Glawe knew that highway 55 for some distance north of West Bend was withdrawn from public traffic is beyond dispute. He knew of such fact by reason оf being compelled to follow the long detour ‍​‌​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​​​‌​​‌‌​​‌‌​‌​‌​​‍out from West Bend up to Barton. He must have known of the necessity for obtaining and following proper directions as to the course to be pursued in leaving Barton by the stopping there for *498inquiry. He was instructed, by Zieber, who hаd made the specific necessary inquiries in that regard, that he, Glawe, was to follow thе two trucks. There is no dispute but that the red lantern on the barrier and the sign were visible to and noticed by the two truck drivers in advance as they proceeded down Main street aftеr passing Glawe and as they approached the fire department house where the turn was to be made. There can be no escape from the conclusion, in view of these circumstances, that it was the duty of Glawe for his self-protection, in the exercise of ordinary care, both -to notice and observe the direction in which thosе who had assumed the duty towards themselves and towards him of ascertaining the direction to take to heed and pay attention to the direction which they took, and in approaching the barrier with the red light to have seen the same and been warned thereby. At that рoint it was his duty to learn which was the proper way. That an opening had been left and сould be seen permitting passage through one side of the barrier cannot be construed as an invitation to the general public to travel thereon in the face of the positive and absolute warning conveyed by the barrier itself with the red lantern and the sign therеon. When Glawe went by-the barrier as he did he was bound to know that it was a warning of possible dаnger ahead on the highway, and it was his duty, for his own protection in the exercise of reasonable and ordinary care, to ascertain what such danger was before prоceeding, or, if proceeding, to so have his vehicle under control that dangers might be averted. Such warning did away with the presumption that would otherwise apply that the highway wаs, in accordance with law, reasonably safe for public use. Hanson v. Clinton, 156 Wis. 147, 151, 145 N. W. 646.

We feel compelled to hold under ‍​‌​​‌​‌​​​‌‌‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​​​‌​​‌‌​​‌‌​‌​‌​​‍our former decisions such as Lauson v. Fond du Lac, 141 Wis. 57, 61, 123 N. W. 629, and Raymond v. Sauk Co. 167 Wis. 125, 128, 166 *499N. W. 29, and cases therein cited, that the judgment directing dismissal of the complaint upon the merits was correct and must be affirmed.

By the Court. — Judgment affirmed.

Owen, J., dissents.

A motion for a rehearing was denied, with $25 costs, on April 7, 1925.