Myers v. Hinds

Grant, J. (after stating the facts). We think the •court was in error, and that the plaintiff’s evidence entitled her to go to the jury. A bicycle is a vehicle. Counsel for the defendant concede this, and the authorities so hold. Holland v. Bartch, 120 Ind. 46 (16 Am. St. Rep. 307); Mercer v. Corbin, 117 Ind. 450 (10 Am. St. Rep. 76); Taylor v. Goodwin, 4 Q. B. Div. 228. The question, therefore, is: What was the duty of the defendant, riding on- a vehicle, in passing a pedestrian going in the same direction ? His vehicle made no noise, and he gave no signal. Many others were walking in this narrow path. The roadbed for vehicles was open to him. If it be granted that he struck a stone or other obstruction, was the stone or obstruction such that he ought, in the exercise of due care, to have seen it, and avoided the danger? Was it such that the consequence of striking it must have been apparent to him? What efforts did he make to avoid the obstruction, if he saw it? When one passes another, both using bicycles and going in the same direction, it appears to be the rule that the one passing is liable if damage results without misconduct on the part of the one passed. Elliott says: ‘ ‘ The only rule of general application that can be laid down is that he who attempts to pass another going in the same direction must do so in such manner as may be most convenient under the circumstances of the case; and, if damage result to the person passed, the former must answer for it, unless the latter, by his own reckless [303] nqss or carelessness, brought the disaster upon himself.” Elliott, Boads & S. 621, 622. See, also, Ang. Highw. § 340; Knowles v. Crampton, 55 Conn. 336. We think the court was in error in holding that the -collision was caused by defendant’s running over an obstacle. As already shown, the only testimony upon "this point was the statement of defendant, made just after “the accident, and the testimony of one witness that she thought he struck something; but she based this thought only upon the noise she heard. His own statement, made after the accident, is not evidence of the fact; it is hearsay. What the witness thought is not conclusive of the fact, unless no other reasonable basis exists for her thoughts or belief than the one she gave. But, even if this were so, it would not follow that defendant was relieved from liability unless the obstruction was such "that he could not see and avoid it by the exercise of due care. Nor do we think it can be held as the law that the ■defendant was in the exercise of due care in riding down “this narrow path at the rate of five or six miles an hour, occupied, as it was, by many other persons going in the same direction. This is not a case for the application ■of the rule of law that an accident and a consequent injury are not of themselves evidence of negligence. When one upon a bicycle comes up behind another, who is unconscious of his approach, and is walking where he has a right to walk, gives no. warning, and strikes him with his vehicle, these circumstances, unexplained, tend "to show negligence. The defendant may be able to show “that he was in the exercise of due care, but the burden of “proof was cast upon him by the plaintiff’s case. The judgment must be reversed, and a new trial ordered. The other Justices concurred.