(dissenting). I think the majority opinion is wrong, for the reason that the defendant co-partnership owed no duty to the deceased, the wife of the plaintiff; and further, because there was no negligence on the part of the defendant.
The facts in the ease are simple. Standard Paving Company had a contract with the state to construct a bridge over Briar creek, and to assist it in the construction of that bridge had made what is referred to in the record as a “by-pass”, “shoo-fly”, or “detour” around the bridge and across Briar creek, on the east side of the highway between Coalgate and Lehigh. Standard Paving Company had completed its contract for constructing the bridge and had fenced off at each end the “detour” it had constructed. The defendant had a contract with the state to lay the approaches to the bridge, and wrote a letter to James George, resident engineer for the State Highway Department, stating that it was satisfactory for Standard Paving Company to leave the ramps off the grade on each side of the bridge over Briar creek (and also at another bridge which was included in the project) and that defendant would repair them to the satisfaction of the engineer on the project without cost to the state. The purpose of this was that the defendant wanted to use the “detour” (which was in actuality a service road) in its construction work in laying the approaches to the bridge. Defendant repaired this service road in order to make use of it for its own purposes.
The traveled portion of the service road was eighteen feet wide, and the stump into which the deceased drove her car was six feet from the edge of *67the traveled portion of the road and was within one foot of the east edge of the 130-foot right of way which the state had at this point. There was nothing in the contract of the defendant with the state requiring it to construct a detour on Briar creek. Section 104.06 of the Standard Specifications provides that maintaining traffic at bridges will not be required of the contractor unless specifically provided in the plans or proposals, and there is no evidence that any such requirement was made of the contractor in this case; as a matter of fact, it was testified that there was no requirement upon the contractor to maintain traffic at the bridge over Briar creek. The defendant made no effort to prevent the local traffic from using this service road, but the unquestioned testimony shows that it was built for the con-, venience of the contractor and not for use by the public. The highway was closed at Lehigh and at Coalgate, with detour signs directing traffic to an alternate route. The use by the public of the service road constructed for the convenience of the contractor was at its own peril. No duty rested upon the defendant to furnish a highway around the construction work. The only duty that defendant owed plaintiff’s deT ceased wife was not to willfully and wantonly injure her, and there is no evidence of any such act here. There was no duty on the state, and none on the defendant, to maintain this service road for public travel. In Seelye v. State, 34 N.Y.S. 2d 205, it was held that where claimant for damages from alleged defective condition of gravel shoulder alongside state’s right of way did not show the existence of a duty on the state to maintain and repair the shoulder, claimant was not entitled to recover.
Even if it had been the duty of defendant to maintain this service road for public use, there is no negligence shown in the manner in which it was maintained. It was not required to have a smooth road for the complete width of the right of way; this was a construction job in which defendant was building a paved highway, and naturally a service road around such work, for the use of its construction equipment, was only temporary; and from photographs reproduced in the record and shown in the briefs it is evident that this road was sufficient for the purpose for which it was constructed.
The stump into which the deceased drove her car was six feet from the traveled portion of the service road. The question of whether or not an obstruction near the traveled portion of an improved road can be an actionable defect has not been passed upon in this state, but respectable authority from other states holds that it is not an actionable defect, even though it is on the shoulder or within the right of way. Gilbert v. State, 56 N.Y.S. 2d 232; Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W. 2d 54; McChesney v. Dane Company, 171 Wis. 234, 177 N.W. 12; City of Knoxville v. Baker, 25 Tenn. App. 36, 150 S.W. 2d 224.
The majority opinion relies upon Standard Theaters v. Hughes, 185 Okla. 377, 91 P. 2d 1058. That case is not in point here, because there was evidence there of the maintenance of a dangerous condition, i.e., a step or ledge between the seats and the aisle of a theater, and the theater was maintained without sufficient lights, while here there was no negligence, for the reason that the alleged obstruction was beyond the limits of the traveled portion of the road.
The majority opinion also states that the facts in Toler v. Hawkins, 188 Okla. 58, 105 P. 2d 1041, and those in the case at bar are similar, but in the Toler case the defect created by the contractor was in the traveled portion of the highway. They had torn up a concrete road and were allowing the public to travel over the torn-up portion of the highway, and permitted a large hole to be worn in the highway, resulting in an injury to an occupant *68of an automobile. The duties and responsibilities of the contractors in that case and in the case at bar are entirely different, in that this service road was not a part of the main highway and there has been shown no duty on the part of the defendant to maintain it for public use.
The defendant has raised a number of propositions which would require reversal of this case if well founded, and I think they are. The record of this case is honeycombed with errors too serious to be dismissed with a wave of the hand, as has been done by the majority opinion.
The majority opinion says that instruction No. 12 given by the trial court was correct. That instruction tells the jury that when defendant removed the barriers across each end of the “detour”, and caused barriers to be placed upon the main highway, thereby causing or permitting local traffic to use said “detour”, it was the duty of defendant to keep in good order the “temporary way of passage for travelers around the obstruction caused by the construction of the bridge.” I submit that this instruction was erroneous in that no such duty rested upon the defendant either by contract, by statute, or by common law.
As previously stated, I think that where a motorist uses a road which has been closed .to the public and withdrawn from travel, he does so at his own peril. See Blashfield’s Cyclopedia of Automobile Laws and Practice, §3269; Shawano Co. v. Froemming, 86 Wis. 491, 202 N.W. 186.
There has been a miscarriage of justice in this case. I respectfully dissent.