(dissenting). The trial court sustained the defendant’s demurrer to plaintiff’s evidence. The court was of the opinion that the complaint did not state a cause of action. The provisions of the contract existing between defendant and the State Road Commission were for the benefit of the traveling public, and as plaintiff was one of the traveling public such provisions were for his benefit. Metcalf v. Mellen, 57 Utah 44, 192 Pac. 676. By section 7 of the defendant’s contract with the State Road Commission it was stipulated as follows:
“In. order that traffic shall not he stopped, the contractor shall maintain the highway, or if it is impossible to maintain the highway in fair condition during construction a reasonable detour shall he maintained and kept in good condition. * * * ”
Also, by the provisions of section 8 of the contract, the contractor (defendant) was obligated to “at all times provide and maintain a safe passageway for all traffic and shall take all other precautions to prevent accidents or loss.” It is likewise admitted by the demuiTer that in repairing the highway the same was closed to traffic, and that defendant desig*485nated, “by means of painted signs and written directions erected along the roadside, as a part of such way or detour, a certain public four-rod right of way in said Davis county, for the purpose of accommodating the traffic necessarily diverted from said Clearfield-Sunset Highway.” It is also stated in the complaint that said detour was not in a reasonably safe condition for traffic. We enter, then, upon a consideration of this case with these facts admitted: That defendant was under contractual duty in repairing the state highway to maintain and keep in good condition a reasonable detour for public travel; that the duty so imposed upon him by contract was for the benefit of the plaintiff; that defendant did close the public highway, and by signs indicated a county road as a detour. It is also admitted by the demurrer that the detour was not in a reasonably safe condition for public travel, and that that condition resulted in the injury to plaintiff. The only attempted defense is that the detour selected was over a county road, and that the defendant had no jurisdiction or control over that highway, and consequently cannot be charged with any neglect by reason of the defective condition of that county road. In my opinion that contention ignores wholly the duty assumed by the defendant under the contract with the State Road Commission. The defendant was under no obligation to select the county road as a detour, in fact was under no obligation to select any particular road, but he was under obligation, made so by the express provisions of the contract, to maintain a reasonably safe detour. That; admittedly, he did not do, and that, admittedly, was the cause of the injury suffered by plaintiff. I confess my inability to see in what way the fact that defendant selected a county road as a detour can in any way relieve him of his contractual obligation or duty. Let us assume, to illustrate, that the defendant had, without obtaining the consent of the owner, selected a road running over private property and designated that as a detour, and by so designating it as a detour sent plaintiff and the traveling public over such selected road, and let us suppose, further, that that detour was in such defective condition that the injury resulted. It *486will hardly be contended under such state of facts that the defendant would not.be liable. Yet, manifestly, under the facts assumed, the defendant would have no jurisdiction or right over the road running over private premises, and could not and would not be permitted to go upon that road to repair it or put it in safe condition. I regard his duty to the plaintiff and the traveling public the same in either event.
For the reasons indicated, I cannot concur in the conclusions reached by the Chief Justice. I therefore dissent.