186 Wis. 491 | Wis. | 1925
The following opinion was filed February 10, 1925:
Numerous objections to the proceedings on the trial are presented, including the voir dire, admission 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 the most favorable construction possible for the plaintiff, nevertheless we are
That the portion of the public highway where the excavation was made might lawfully be withdrawn from public use and one traveling thereon does so at his peril cannot well be questioned.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, now sub. (6), sec. 82.04 (first appearing as sec. 6, ch. 668, Laws 1913), ■ giving the county highway commissioner power to stop travel on any highway in process of construction or repair by posting notices forbidding such travel at each end of such highway, and providing that any person violating such 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 that 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 applicable here, though subsequently, and by ch. 446 of the Laws of 1923, creating sec. 81.09, Stats., a power 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That Glawe knew that highway 55 for some distance north of West Bend was withdrawn from public traffic is beyond dispute.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 of 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
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
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on April 7, 1925.