Buckley v. County of Washington

Rosenberry, J. The court instructed, the jury as follows : “The plaintiff claims that the defendants were negligent in failing to maintain the detour in a safe condition for travel; that the defendants were negligent in failing- to maintain proper barricades at the junction of highway 55 and the detour; that the defendants failed to maintain proper notices directing traffic; to keep this particular portion of the detour free from holes, excavations, piles of débris, and stones; to maintain proper lights and other danger signals bn said road and detour to warn the public of its unsafe condition.” The instructions are very general. It appears from the uncontradicted evidence that there was maintained at the time and place in question a highway eighteen feet in width, over which approximately 2,000 cars passed daily without difficulty. The plaintiff knew that he was upon a trunk highway and that he was upon a detour and that at some point below • Kewaskum his route would join the regular highway. ITe saw the planks, the turntable, railway target, and while going at the rate of twenty miles an hour turned suddenly to the right in order to follow a wagon track into the ditch. . It is held that the defendants were guilty of no want of ordinary care in failing to maintain a barrier at the side of the road at the point in question. No law required them to maintain such a barrier. If, as is contended by the plaintiff, the barrier erected for the purpose of .deflecting the travel from the south was not in place or the light was not burning, there seems to be no causal connection between that fact and the injury sustained by the plaintiff. In any event, a traveler proceeding at the rate of twenty miles an hour, making a sudden abrupt turn to the right on a road which he knows is under construction, must be held to be guilty of contributory negligence as a matter of law. Under the circumstances plaintiff’s act bordered on recklessness. He testified that he had brilliant lights. A moment’s observation would have disclosed the true situation to him. In [181] stead of taking that moment for observation he chose to plunge ahead. Contractors and the public authorities are not insurers of the safety of travelers, and the plaintiff under the circumstances disclosed by the facts in this case was bound to, exercise care for his own safety. This is not a case where thé traveler slid into the ditch or was thrown from the highway by an obstacle, but one where he deliberately -and intentionally departed from the traveled track for no- other reason than that he was following a wheel track or rut, as he described it. The jury was apparently very much in doubt as to the liability of the defendants. The evidence would have warranted a substantial verdict and the amount awarded indicates a compromise. That is no reason for reversing the judgment, but simply confirmatory of the view which we take of the evidence, which it is held discloses no negligence on the part of the defendants and does disclose contributory negligence on the part of the plaintiff. We may say that it is difficult to place upon paper a proper description of the place, but the testimony, taken in connection with the photographs and the plat, a part of which is reproduced herewith, makes the situation fairly plain. By the Court. — Judgment reversed, with directions to dismiss the complaint.