Fielder v. Tipton

SIMPSON, J. — This was an action for damages on account of injuries claimed to have been received by the plaintiff (appellee) on a sidewalk in Mobile, from being run against by the defendant (appellant) while riding on a bicycle along said sidewalk. The assignments of error, are to the rulings of the court on deniurrérs to counts ,of. the complaint and to giving and refusing charges. The third count of the complaint, -as amended, avers that complainant was on the sidewalk as a pedestrian, and that the defendant, riding on a-bicycle; ran the .saixxe on and against her, thereby causing the injury and that “defendant was riding his said bicycle thereon • at the time when he ran into her.” The demurrer to this •count alleges as grounds: (1) That it does not allege any facts which would constitute negligence; (2) does not show; that defendant was -..negligently riding his •bicycle; (3) .does not allege .that tlxe injury was due to the negligence of the defendant; (4) that it is not. negligent per se -to- ride a bie.ycle on. the sidewalk. • The argument of appellant to show that the court erred in overruling the demurrer to the third count of the complaint as amended is that, as there was no ordinance of the city prohibiting persons from riding on- the side-walk in question, the ■ defendant had the right to be there, and-consequently that it was necessary to allege some other act of negligence than the mere riding of the no — 011 the sidewalk. The case of Lee v. City of [611] Port Huron, (Mich.) 87 N. W. 637, 55 L. R. A. 309, was a case in which a bicycle rider sued for .damages for injuries- received on. account -of a defect-in the sidewalk; and- the court-said that the riding of a-bicycle on the •■sidewalk is not an unlawful act at common law, and that one riding on a sidewalk “with care, under authority of a municipal, ordinance,” may recover .for injuries resulting from the Avant of repair of the sidewalk; but the court intimates that .such Avant -of- repair must be such as Avould render it not- reasonably suited for. the uses for which sidewalks - are constructed, to-wit, for pedestrians,.- and that he could not recover for .any other, such as a crack between • the planks .of a plank side\Aralk. The case of Purple v. Greenfiald, 138 Mass. 1, 7, Avas one in which the plaintiff stepped -back to avoid a boy riding on a velocipede, and fell into- a cellar windoAV hole, and the court say: “We,cannot- lay it down as a universal proposition that any and every use of any kind of Awlocipede upon the sideAvalk,is unlaAVful.-”- On the other hand, the authorities sustain the proposition that a bicycle is a ‘Vehicle,” and that its proper place is upon the -highway, or the, street proper, and not -upon the sideAvalk. — Elliott on Roads and Streets (2d Ed.) § 852, p. 927; Clementson on Road. Rights and Liabilities of Wheelmen, §§ 99, 103, pp. 90, 94; Davis v. Petrinovich, 112 Ala. 651, 21 South. 344, 36 L. R. A. 615. It has also been held that, even without a statute, one who rides a. bicycle at night Avithout a light or other signal on a public thoroughfare-is-guilty of negligence. — Cook v. Fogarty, (Iowa) 72 N. W. 677, 39 L. R. A. 488. In a case AAdieiein the Supreme Court of; Indiana held that one Avho rudely and recklessly ran a bicycle against another, Avho was standing on the sideAvalk, was guilty of an assault and battery, regardless of his ■ intent, -the court remarks- that the bicycle is a vehicle, and its use on a-public -sideAvalk is- uni awful; also that “sidewalks aré intended for the use of pedestrians, and not for the use of-persons in vehicles. * It would be a-palpable contradiction to affirm that footmen have thé exclusive right to the use'of the sidewalks,' and yet concede that .persons, not traveling as pedestrians may [612] also rightfully use them. — Mercer v. Corbin, 117 Ind. 450, 454, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76. In a case which was very maturely considered, and in which a number of authorities are cited, the Supreme Court of New Jersey has held that a person who was kicked by a horse which was being led along the sidewalk was entitled to recover, without regard to the fact as to whether the horse was known to be vicious, on the ground that the party defendant had no right to lead the horse along the sidewalks, and. the cases therein cited sustain the proposition that it is not necessary to allege any special negligence, other than the mere fact of leading the horse on the sidewalk. — Healey v. Ballantine, (N. J. Sup.) 49 Alt. 511, 512, 514. Messrs. Sherman & Red field, in their work on Negligence ( 3d Ed. § 310), in referring to the case of a person traveling on'the wrong side of a road, say: “He assumes the risk of all experiments in this direction, and is bound to use more care, and to keep a better lookout, for approaching vehicles, than would otherwise be íequired of him; while those who pass him -on their proper side of the road have a right to presume that no greater caution or skill will be required on. their part than would be necessary if he were on his own side of the road. By an unnecessary deviation from his proper side of the road, he takes the risk of the consequences which may arise from his inability to get out of the way of auother traveler approaching on the right side of the road.” In the light of these authorities, and in accordance with the reason of the law, we think it is clear that the' pedestrian has a right to the uninterrupted use of the sidewalk, and is not- íequired to exercise any more care in walking thereon than such as is necessary to ayoid injuries from other pedestrians walking thereon; the question of the repair of the sidewalk not being involved. On the other hand, the person riding a bicycle has no right to the use of the sidewalk, and while it may be true that such use is tolerated by the fail are to affix a penalty thereto, yet, when a person rides a bicycle on a sidewalk, he is invading the part of the street set apart for the use of pedestrians, and takes upon him [613] self tlie risk of injuring them, so as to he responsible to any pedestrian, who- is injured, while in the proper exercise of his rights in coming upon or waking along the sidewalk. Consequently the allegations of the third count of the complaint as amended weie sufficient, and the court committed no error in. overruling the demurrer. Without entering into the question as to whether the city lias, the right to allow bicycles to be ridden on the sidewalks, the ordinance introduced in evidence does not definitely authorize the .riding of a bicycle on any sidewalk, except between the houis of 12 o’clock midnight and 7 a. m. The defendant himself testified that he was traveling at the rate of 4 or 4 1-2 miles per hour; that “he was familiar with the oyster shop from which plaintiff stepped, and knew that persons were constantly going in and out, as he passed along there four times every day”; also, that it was impossible for him to turn in time to have avoided striking her, after he saw her. Under the rules above laid down, the court would have been'justified in giving the general charge in favor of the plaintiff. Hence the defendant was not injured by any charge given by the court. The judgment of the court is affirmed. Tyson, C. J., and Haralson and Denson, J.J., concurs.