I am of the opinion that the judgment should be reversed, with costs and without a new trial.
The statute is a safety measure and one who violates its provisions and is injured thereby, even *Page 477 under attempted and unsuccessful stoppage of traffic, is guilty of contributory negligence as a matter of law. It was not only a violation of the statute but, in and of itself, a negligent act to fasten the rope across the street in the manner shown. Defendant may have been guilty of negligence but I am satisfied that plaintiff, who directed the placing of the rope and then went up into the tree and there followed the result quite likely to happen by the negligence of another, was guilty of contributory negligence as a matter of law.
In Langdon v. City of West Allis, 216 Wis. 325 (257 N.W. 8), it was held, quoting syllabus:
"A provision of a city ordinance, enacted under authority of section 66.05, Statutes, and requiring that guy-ropes leave at least fifteen feet of clearance above the road-bed outside the confines of a street permit, was a safety measure, the violation of which constituted negligence as a matter of law, as respects the right of a structural steel-worker, who had erected and stretched across a street a guy-rope supporting a derrick, to recover for injuries sustained when a truck struck the guy-rope.
"The negligence of the worker in stretching the guy-rope across the street too near the ground in violation of the ordinance is held as a matter of law to have contributed to his injury when the defendant's truck struck the guy-rope, causing the derrick to fall and injure the worker who was assisting in hoisting a beam into place."
In that case —
"One of these ropes was tied to a telephone-post on the side of the street opposite the gin-pole, and the other to the bumper of a car. The plaintiff, with another employee of the contractor, erected the derrick and set up the guy-ropes. The end of the guy-rope which was fastened to the telephone-pole was *Page 478 sufficiently near to the ground on the opposite side of the road to interfere with the free passage of automobiles and vehicles on that side of the street. The foreman requested one Rabik to remain on the street and warn vehicles of the presence of the guy-rope."
See, also, Hatfield v. White Line Motor Freight Co., Inc., 223 Iowa, — (272 N.W. 99); French v. Inhabitants of Brunswick,21 Me. 29 (38 Am. Dec. 250); 5 Thompson on Negligence (2d Ed.), § 6022, and Bush v. Goodno, 223 A.D. 152 (251 N.Y. Supp. 271).
CHANDLER, J., concurred with WIEST, J.