McChesney v. Dane County

Rosenberry, J. The act of traveling for one’s own convenience outside of the way prepared for the public constitutes contributory negligence as a matter of law. See Wheeler v. Westport, 30 Wis. 392, and line of cases cited in Sweetman v. Green Bay, 147 Wis. 586 (132 N. W. 1111), at p. 603. We do not understand that Sweetman v. Green Bay, supra, overrules or modifies the doctrine established by the cases referred to. The question here is whether or not the facts in this case bring it within the. rule. In Wheeler v. Westport it is said: “This conclusion results in no change of the general rule that travelers are required to keep within the traveled way, but merely in defining its application to be not only to the way actually traveled and in most frequent use, but also to [237] those parts of the road contiguous to and immediately connected with such way, which the town, in the discharge of its duty, is required and presumed to have kept clear from dangerous defects and incumbrances. Such mitst, as it seems to us, in view of the authorities and of well settled principles regulating the duty of towns, be the true meaning and application of the rule; and if it is, then the question whether the plaintiff was negligent or not in walking where he did, was one of fact for the jury under the particular circumstances, and not one of law for the court.” We find nothing in the opinion or in the dissenting opinion in Sweetman v. Green Bay, 147 Wis. 586, 132 N. W. 1111, that tends to.limit or modify this rule. In the case at bar the plaintiff was not turning out for his own convenience or pleasure. He was obliged to turn out to comply with the law of the road. In turning out he turned farther to the right than he was required to do by the law of the road. Was he guilty of contributory negligence in so doing? It is true that though there be a defect or obstruction within the limits of the highway, if it is not in the traveled part of the road, or so connected with it as to affect the safety and convenience of those using the traveled bed, the municipality is not responsible for an injury sustained by one in consequence of it. Whether or not an obstacle is so connected with the highway as to affect the safety or convenience of those using that part prepared for public travel has always been held, when doubt exists, to be a question for the jury. That is exactly the question presented by the facts in this case. Was the abutment so connected with the highway as to affect the safety of the plaintiff in his use of the traveled part of the highway? • That being a question for the jury, the granting of the nonsuit was error. By the Court. — Judgment reversed, and the cause re-juanded fop a new trial,