Morrison v. City of Syracuse — 45 A.D. 421

Majority

p. 421

Minnie Morrison, Respondent, v. The City of Syracuse, Appellant.

Headnote

Duty of a city to a bicyclist authorized to use its sidewalks.

A city which, upon the payment of a nominal fee, permits a bicyclist to ride upon the sidewalk, owes to such bicyclist no greater degree of care in respect to the maintenance of such walk than it owes to pedestrians thereon.

Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga ón the 27th day of January, 1899, upon the verdict of a jury for $300, and also from an order, bearing date the 26th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Upon the 12th day of September, 1897, the plaintiff was injured while riding a bicycle upon a sidewalk in the city of Syracuse at the corner, of Manlius street and Durston avenue. This corner is at the extreme limit of the city, and beyond the business and the main residence portions. The ground was low, and the walk was at least eight inches above the surface of the ground. The walk was four feet wide, and at this corner the walk on Durston avenue, as it met the walk on Manlius street, was sunken, as the evidence of the. plaintiff shows, about eight inches upon the inner side. The outer side was level with the walk on Manlius street. This sinking had been caused by the washing out of the foundations of the walk at that place. This condition had existed for several months. Upon the day in question the plaintiff was riding along-Manlius street, toward Durston avenue, and some people were ahead of her, which fact, together with .the fact that weeds had grown up by the walk, is claimed by the plaintiff to have prevented her seeing the condition of the walk in time to avoid the accident. Her claim is that in turning from Manlius street to Durston avenue this depression caused her to fall from her wheel and receive the injury for which she has brought this action.

Harry E. Newell, for the appellant.

Frederick A. Kuntzsch, for the respondent.

The defendant’s counsel in his brief urges four objections to the plaintiff’s recovery : First, that the plaintiff has not shown herself free from contributory negligence; second, that the defendant is not shown to be guilty of the negligence which caused the injury; Third, that the plaintiff was unlawfully upon the walk.; fourth, ■that the city was only bound to have its walks in a reasonably safe -condition for pedestrians..

The exception which is made the basis of the fourth' objection -arose in response to the eleventh request to charge made by the ■defendant. The exception, as presented by the record, is as follows : ■“ Mr. Newell: Eleventh. That the defendant was not an insurer of. the safe condition of the walk as against accidents to persons using the same to ride bicycles upon. The Court: I will charge in that respect that they were obliged or bound to furnish a reasonably safe sidewalk for the purposes intended, that is, bicycle riding. Mr. Newell: Give me an exception to your Honor’s refusal and to your Honor’s modification.”

In Sutphen v. Town of North Hempstead ( 80 Hun, 409 ) it is held: “A commissioner of highways owes no larger measure of duty to bicycle riders than to persons traveling upon the highways on ordinary vehicles; he is only bound to keep the highways in a condition which is reasonably safe for general and ordinary travel.”

In Leslie v. City of Grand Rapids (78 N. W. Rep. [Mich.] 885) it is held: “ Where a street is kept in a reasonably safe and fit condition for ordinary véhicles, such as wagons and carriages, the town is not liable for injuries received by one thrown from her bicycle by reason of its defective' condition.”

In Wheeler v. City of Boone (78 N. W. Rep. [Iowa] 909) it is held: “ One injured while riding a tricycle on a sidewalk can recover only if the city was negligent in failing to keep the. walk in suitable condition for people to walk over, and he, while riding the tricycle, exercising due care, was injured because of such neglect.” In the opinion the court says : “ The court instructed that while' the city was required to keep its walks in reasonably" safe condition for pedestrians exercising reasonable care, it was not required to keep them in safe condition for people riding thereon in tricycles ; and, as the-accident in this case occurred while plaintiff was on a

p. 423

tricycle, the liability of the city must be tested by the same rule that would obtain had plaintiff been walking and then been injured ; that is, if the city was negligent in failing to keep the walk in suitable condition for people to walk over, and plaintiff, while riding on the tricycle, in the exercise of due care, was injured because of such neglect, he could recover. We think the rule a cor. rect one. It differs from the oft-expressed rule only in this: that persons who have a right to ride on the sidewalks in such vehicles may rely, the same as footmen may, on the walks being in a suitable condition for people to walk over, and have the same rights in case of injuries, resulting from neglect. Such a rule places no additional burden on the public and seems to be just as to the individual.”

The permission given to the plaintiff to use the walk with her wheel was given upon the payment of a nominal fee paid, under the wording of the ordinance, “for recording.” The general use of the bicycle is of such recent date that few of the sidewalks of a city have been built with reference thereto. If a municipality were required to furnish a sidewalk reasonably safe for bicycle riders, the whole system must be changed. This plaintiff already had the legal right to the use of this sidewalk as a pedestrian. As such the municipality was bound by law to use reasonable diligence to provide for her a walk reasonably safe. With the added permission to ride a bicycle thereupon, it could not have been intended by the municipal authorities to assume toward her any further or different obligation than already existed. Any stricter rule of responsibility would result in much litigation and a largely increased liability, and would make it impossible for municipalities to grant such permissions.

This objection is answered by the plaintiff’s counsel by reference to a charge afterwards made by the trial judge, to the effect that the municipality did not owe to the plaintiff the exercise of the same degree of care and caution as to the condition of the walk in question that it did to a pedestrian walking upon the same. The jury might well have inferred, however, from this charge, that'the municipality, not owing the same duty, owed to the plaintiff a greater duty than it owed to a pedestrian. But even if the inference were legitimate that the municipality owed to the plaintiff a lesser duty, in the way in which the charge was made in answer to the request, we are satisfied that the jury were not made clearly to understand

p. 424

that the municipality owed any less duty to the plaintiff than the duty to keep the walk in a reasonably safe condition for bicycle riding. The jury had. been instructed that that was the measure of the defendant’s duty. This was error. To repair the mischief in such error it should have been so clearly corrected as to satisfy the court, that the jury have not been thereby misled. Of this we are not satisfied in the case at bar, and for this error, we think, the defendant is entitled to another trial.

It thus becomes unnecessary to examine the other objections to-the judgment raised by the defendant.

■All concurred.

Judgment and order reversed and new trial ordered, with costs-to the appellant to abide the event.