I believe that the case of Haszczyn v. Detroit Creamery Co.,281 Mich. 467, controls the present controversy. In that case, 1 Comp. Laws 1929, § 4056 (Stat. Ann. § 9.266), was under consideration and it was held that the violation of the statutory provision did not bar plaintiff's recovery *Page 78 unless such negligence was the proximate cause of the accident and that, in view of the perfectly apparent conditions in the street, defendant was liable for heedlessly and negligently causing plaintiff's injuries. The following language from that case (p. 471) is appropriate to the present situation:
"The height of defendant's truck was nine feet four and a half inches, and at the point which contacted the rope the height was about two inches less. It is defendant's contention that the proximate cause of plaintiff's injury was the stretching of the rope under plaintiff's direction across the street in violation of the above quoted statute. If there were no qualifying circumstances disclosed by the testimony, defendant's contention that violation of the statutory provision was negligence per se on the part of plaintiff and a bar to recovery would be sound. But that result does not follow unless such negligence was the proximate cause of the accident.Arvo v. Delta Hardware Co., 231. Mich. 488; Cothran v. BenjaminCleenewerck Son, 235 Mich. 351. Under this record it cannot be said as a matter of law that such negligence was a proximate cause of plaintiff's injury.
"Employees whose work requires them to be in or upon public streets and also requires obstructions in or about such streets which otherwise would be in violation of law, are not thereby necessarily guilty of negligence in performing their work. But such employees must take reasonable precaution and use reasonable means to guard against possible injury resulting from such unusual conditions. In the instant case it was clearly a question of fact as to whether plaintiff complied with this requirement. If he did, then placing the rope across the street was not in law a proximate cause of this accident, otherwise it was a proximate cause."
In the instant case, as in Haszczyn v. Detroit Creamery Co.,supra, the work being carried on was *Page 79 work incident to keeping the public highways of the State in a condition of safety and convenience for public travel. It was necessary that this work should be done in and upon the public highways. Under the circumstances disclosed by this record, the court cannot say as a matter of law that neither the plaintiff nor his employer had the right to use such tools, equipment and materials as were customary and required in such repair or construction work, and to move the same where necessary on that part of the road under construction. True, plaintiff was bound to use reasonable care for his own safety. His employer was bound to use reasonable care for the safety of his employees and anyone else who was lawfully on said highway. Timely and ample warning was given defendants and all others who might desire to use this highway that it was undergoing repair and construction work. It is apparent that the wire reinforcing mesh was being transported in the usual and customary way. Under the circumstances, an issue of fact was fairly presented as to whether the unlawful* width of the mesh contributed to the accident or whether the unreasonable rate of speed of defendants' truck, or the failure of the driver to go seasonably on the shoulder of the road when he had a clear view of the tractor, trailer and load of mesh for 200 feet, constituted the sole cause of plaintiff's injuries.
Reversed and remanded for entry of judgment on the verdict rendered, with costs to plaintiff.
BUTZEL, BUSHNELL, NORTH, and MCALLISTER, JJ., concurred with CHANDLER, J.
* See 1 Comp. Laws 1929, § 4728 (a) (Stat. Ann. § 9.1596). — REPORTER. *Page 80