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SUPREME COURT OF KANSAS.
W. E. SWIFT vs. THE CITY OF TOPEKA.

(Kansas Supreme Court Decision, quoted in 43 Kansas, at page 671.)

1st. Bicycle-Kansas City River Bridge, City Ordinance, not violated. A person who rides on his bicycle, across that part of the Kansas River Bridge which is used for the passage of street cars, carriages, and other vehicles, does not violate section seventeen of city ordinance No. 861, of the City of Topeka, that reads as follows:

"It shall be unlawful for any person to ride on any bicycle or velocipede upon any sidewalk in the City of Topeka, or across the Kansas River Bridge. Any person violating this section shall, upon conviction thereof, be fined in a sum not less than $1.00, nor more than $10.00 for each offence"

Construction of Ordinance. Whenever a city ordinance can be so construed and applied as to give it force and validity, this will be done by the Courts, although the construction so put upon it may not be the most obvious and natural one, or the literal one.

APPEAL FROM SHAWNEE DISTRICT COURT.

The case is stated in the opinion, filed on May 10th, 1890.

Johnson, Martin & Keeler, for appellant. S. B. Isenhart, City Attorney, contra.

Opinion by Simpson, C.: W . E. Swift was convicted in the Police Court, of the City of Topeka, of violating section 17, of the ordinance of said City, No. 861, and fined the sum of $1.00 and costs. From this conviction, he appealed to the District Court of Shawnee County, where a jury was waived, and a trial had by the Court, which resulted in his conviction, and that a fine of one dollar and costs was imposed. He brings the case here, for review, and alleges the invalidity of the ordinance as a cause for reversal. Section 17, of the ordinance in question, reads as follows:

[page 4] "It shall be unlawful for any person to ride on a bicycle or velocipede upon any sidewalk in Topeka, or across the Kansas River Bridge. Any person violating this section, shall, upon conviction thereof, be fined in a sum not less than one dollar nor more than ten dollars, for each offense."

It was admitted at the trial, that the Defendant, W. E. Swift, on the 21st day of June, 1889, was riding upon a bicycle across the Kansas River Bridge, situated on Kansas Avenue, within the corporate limits of the City of Topeka; that he was engaged in riding his bicycle across the said bridge when he was arrested, which bridge is 900 feet long, and spans the Kansas River, between North and South Topeka: that the main part of said bridge is constructed wide enough for teams to pass each other going in opposite directions, being about seventeen feet in the clear, that on each side of the wagon road, there is a passage way for foot passengers, and that the Defendant was riding his bicycle, at the time named in the complaint, on that part of the bridge, used for wagons, carriages, and other vehicles; that the bridge just described, is the only bridge on Kansas River between North and South Topeka, and is the only means of communication between those points; that it is used, and occupied with a double track by the Topeka City Railway Company, which continually, runs its street cars between the two points named; that there is a large travel across said bridge, between the two parts of Topeka, by vehicles drawn by horses, and otherwise, and that teams, and other vehicles are constantly passing over said bridge each way. It is further shown by the evidence, that a bicycle can be driven at the rate of, from two to twenty miles per hour; that the ordinary and usual rate of speed is eight miles per hour; that it can be stopped within from two to twenty fret, when being driven at the rate of ten miles an hour, the limit within which it can be stopped, depending somewhat on the kind of bicycle, and the experience of the rider; that bicycles have been in use [page 5] in this City for several years, and at the time of this arrest that there were more than one hundred in constant use in the city. These are the substantial and material facts, which are shown by the record.

It will be seen, by an ordinary inspection of the record that the ordinance only prohibits the use of a bicycle or velocipede, upon any sidewalk in the City of Topeka, or across the Kansas River Bridge. It does not, either in express terms, or by fair implication, forbid riding upon a bicycle on the roadway, or that part of any of the public streets, which is devoted to the use of wagons, carriages and other vehicles; and while the ordinance is subject to the construction that it was only along or across the foot passage way or sidewalk of the Kansas River Bridge that persons were forbidden to ride on bicycles, yet for the present, we shall adopt the construction necessarily adhered to by the trial Court, that the ordinance intended to forbid all riding upon bicycles across any part of the Kansas River Bridge. It is an admitted fact in this case, that at the time of the arrest, Swift was riding his bicycle on that part of the bridge used for wagons, carriages and other vehicles. A bicycle is defined by lexicographers, and by the Courts of England and of this Country, to be a carriage.

(Webster's Dictionary; Taylor vs. Goodwin, 40 L. T. Rep. N. S. 458; Mercer vs. Corbin, 117 Ind. 450; 2 Am. & Eng. Ency. of Law. 191; The State vs. Collins, 17 Atl. Rep. 131, decided by Supreme Court in Rhode Island, in December, 1888. )

A bridge in the City of Topeka is a part of the public street.

(City of Eudora vs. Miller. 30. Kansas 494.)

The exact question then is, have the authorities of the Ciiy of Topeka, by an ordinance, the power to forbid Swift from riding upon his carriage on that part of a public street, devoted to the use of vehicles? This statement of the question necessarily assumes that the power of the City [page 6] could be exercised to prevent the use of bicycles along the sidewalks of the public streets, (and these sidewalks will include the footways across the bridge), to the same extent as the use of all other kinds of vehicles, no matter how propelled could be prevented.

Public streets are highways, and every citizen has the right to use them. Both the sidewalks, and roadways must remain unobstructed, so that people can walk along one without interruption, or danger, or drive along the other without delay or apprehension. One of the most imperative duties of the City governments in this country, is to keep their public streets in such a condition, that citizens can travel along them with safety, and without any unnecessary delay. Each citizen has the absolute right, to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor, or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements, that are known as the law of the road. This right of the people to the use of the public streets of a city, is so well established, and so universally recognized in this Country, that it has become a part of the alphabet of fundamental rights of the citizen. While the tyranny of the American system of government very largely consists in the action of the municipal authorities, this right has not yet been questioned, or attempted to be abridged. There can be no question, then, that a citizen riding on a bicycle in that part of a street devoted to the passage of vehicles, is but exercising his legal right to its use, and a City ordinance that attempts to forbid such use of that part of a public street would be held void as against common right.

It may be said of bicycles, with greater force, as was said of the first use of public streets, by railroads, that they are not an obstruction to, or an unreasonable use of the public streets of a city, but rather a new and improved method of using the same, and germane to their principal objects as a passage-way.

[page 7] (Mills Em. Dom., Section 199; Briggs vs. Horse Railway Co., 4 N. E. Rep. 546; 79 Me. 363; Slattern vs. D. M. Rly. Co., 29 Iowa, 149.)

So that if the construction necessarily given to this ordinance of the City of Topeka should prevail, we would be compelled to say that the part of the ordinance, that forbids a citizen from riding across any part of the Kansas River Bridge, is of no validity. But if a statute or a city ordinance is susceptible, of two different constructions, that one must prevail, that will preserve the validity of the ordinance, in preference to a construction that will render it invalid; and this must be done although the construction adopted may not be the most obvious or natural one.

(Newland vs. Marsh, 19 Ill. 376; Iowa Co. vs. Webster Co., 21 Iowa, 221; Roosefelt vs. Godard, 52 Baeb. 533; Colwell vs. Landing Co., 4 Green N. J. 245; Bigelow vs. Railroad Co., 27 Wis. 478; Dow vs. Norris, 4 N. H. 17; Cooley's Const. Lim. 184; Inkster vs. Carver, 16 Mich. 484.)

Hence we say, that the true intent meaning of section 17 of the City ordinance in question, is that all persons are forbidden to ride upon bicycles, upon any sidewalk in the city, or the sidewalks, or the footways of the Kansas River Bridge. Sidewalks are intended, constructed, and used solely by pedestrians and not for the use of vehicles. It is presumably true that every organized town or city, in the country, forbids the use of its sidewalks to vehicles of every description. A bicycle, being a carriage, can properly be excluded from the rise of the sidewalks, and persons riding on them should be forbidden to occupy the sidewalks. and footways of the public streets, at least. longitudinally, along such sidewalks, or footways. They should, be permitted to go across them at such public places as other vehicles are permitted to cross. With this construction of the ordinance, it is plain that Swift has not violated its provisions, and that his conviction was wrongful.

[page 8] The judgment of the District Court is reversed, and the cause remanded, with instructions to dismiss the prosecution, and discharge the appellant.

By the Court: It is so ordered.

All the Justices concurring.

SUPREME COURT OF RHODE ISLAND.
STATE VS. PATRICK H. COLLINS.
16 R.I. 371.

A bicycle is a "carriage or vehicle" within the meaning of Pub. Stat., R. I., cap. 66, sect. 1, which requires any person traveling on a highway with a carriage or vehicle to turn out to the right on meeting another person so travelling.

Exceptions to the Court of Common Pleas.

December 11, 1888. Per Curiam. The question raised by the exceptions is whether a bicycle is a carriage or vehicle within the meaning of Pub. Stat. R. I. cap. 66, sec. 1, which enacts that "Every person travelling with any carriage or other vehicle, who shall meet any other person so travelling on any highway or bridge, shall seasonably drive his carriage or vehicle to the right of the centre of the travelled part of the road, so as to enable such person to pass with his carriage or vehicle without interference or interruption." We are of the opinion that it is a carriage or vehicle which carries a person mounted upon it, and which is propelled and driven by him. The word "vehicle" is certainly broad enough to include any machine which is used and driven on the travelled part of the highway, for the purpose of conveyance upon the highway. The purpose of the section is to prevent accident or collision, and such accident or collision may happen from a bicycle and other carriage meeting, unless the rule laid down in the section is observed. In Taylor vs. Goodwin, L. R. 4 Q. B. Div. 368, it was decided that a bicycle is a carriage within the act which forbids the driving of any sort of carriage "furiously so as to endanger the life or limb of any passenger."

[page 9] Exceptions overruled, and case remitted to Court of Common Pleas for sentence.

Nicholas Van Slyck & Cyrus M. Van Slyck, for plaintiff.

Rathbone Gardner, for defendant.

NEW YORK SUPREME COURT, GENERAL TERM, THIRD DEPARTMENT.

ALFRED SCHIMPF, Respondent, against ALONZO SLITER, Appellant.

Present:-Hon. Stephen L. Mayham, P. J.; D. Cady Herrick and John R. Putnam, J. J.

July, 1892.

Appeal by defendant from judgment on report of referee.

Action by Alfred Schimpf, against Alonzo Sliter, to recover damages for personal injuries.

Galen R. Hitt, for appellant; Eaton & Kirchway, (Harold L. Hooker of Counsel,) for respondent. 64 Hun. 463. 46 St. Rep. 225.

PUTNAM, J.--The referee found that on the 2d day of May, 1888, plaintiff, riding on his bicycle on the driveway in Washington Park, in the City of Albany, and going at the rate of three miles an hour, met defendant driving a buggy, going at a rate exceeding six miles an hour, in the opposite direction. Plaintiff was on the right side of said road, near to its western margin, when defendant came up on the same side and ran into him, causing the injury, for which this action was brought. The referee found that the defendant was negligent and the plaintiff free from contributory negligence. There was no serious controversy in the case as to plaintiff being on the proper side of the road and defendant being on the wrong side, and hence as to the negligence of the latter. But it is insisted that the plaintiff, going at the rate of three miles per hour on his bicycle, and seeing that defendant was about to run into him, could easily have turned to the left, and avoided a collision, but on the contrary, he voluntarily [page 10] ran his bicycle into defendant's wagon, and thus caused the injury. The rule in this class of cases is well settled that plaintiff must show that the injury was not caused by his own negligence. If a want of care on his part contributed to produce the injury, although the plaintiff was on the right side of the road and the defendant on the wrong side, plaintiff cannot recover. (Kennard vs. Burton, 25 Me., 47-49; Lane vs. Crombie, 12 Pick. 177; Parker vs. Adams, 12 Metc. [Mass.], 419, 420; Hartfield vs. Roper, 21 Wendal 615.) Therefore, although plaintiff was on his own side of the road, he must also show that he endeavored to avoid a collision with defendant's vehicle. The question then arises whether the evidence justified the finding of the referee that plaintiff was not guilty of contributory negligence. I have given that evidence a careful examination, and am of opinion that it does. The plaintiff was going on his own side of the street when he met the defendant driving somewhat rapidly. Schimpf could not be expected to know or believe that Sliter, when he reached him, would not turn out. The latter would only be compelled to turn out for a bicycle a short distance -- only a foot or two -- and could do so in a moment. Therefore plaintiff was justified in supposing that defendant would obey the law, and turn out, until the last moment. Hence no negligence could be imputed to plaintiff in not himself going to the left until the defendant was right upon him, because until that time he could have no reason to believe that the latter would not give way to him. Then, if Schimpf turned to the left, he ran the risk of Sliter's turning at the same time and causing a collision. Had plaintiff, when the horse and bicycle were near each other, turned to the left, and the defendant at the same time turned to the right, and collision occurred, the former would have been legally liable for all damages. I think the referee could properly find, under the circumstances, that plaintiff acted with good judgment and not negligently. He could not know defendant's intent, or what [page 11] the latter would do. If the plaintiff violated the law by turning to the left he was liable to cause damage to defendant's vehicle, for which lie would have been legally responsible. He was not bound to put himself in that position. I think, therefore, from the facts appearing in the case, the referee could find that Schimpf was not negligent in assuming until the last moment that Sliter would give way to him, and at the last moment it was not negligence on his part to not run the risk of turning to the left when to do so would have subjected him to risk of collision if Sliter should turn the same way. But, even if plaintiff did not act with good judgment in the matter, the finding of the referee can be sustained. It is well settled that when a party, by negligence of another, is placed in a position of danger, and is compelled to act suddenly, the law does not demand that accuracy of judgment which would be called for under other circumstances; and in such s case, even if he makes a mistake, he will not be deemed negligent. (See Dyer vs. Railroad Co., 71 N. Y. 228; Bucher vs. Railroad Co., 98 N. Y. 132, 133; Salter vs. Railroad Co., 88 N. Y. 49; Twomley vs. Railroad Co., 69 N. Y. 158.)

Hence, if plaintiff found at the last moment that defendant did not turn to his right, and he did make a mistake in not turning to his (defendant's) left, yet being called on to act suddenly, his mistake, under the circumstances, was not negligent. (Chaplin vs. Hawes, 3 Car. & P., 554,) illustrates this view of the case. That was an action to an injury to a horse plaintiff's servant was riding by defendant's cart. Defendant's cart was on plaintiff's side (the wrong side) of the road. The plaintiff's servant was riding through the gate when the injury happened. He testified that when three or four yards from the gate he saw the cart coming, and could have pulled up, but did not, thinking that the driver would wait, as it was a gate through which the cart had no right to pass. The defendant claimed that if plaintiff's man pertinaciously insisted on his right [page 12] of going through the gate when he might have avoided the injury either by waiting or turning aside, the plaintiff could not recover. The court held, that, if plaintiff's servant had such clear space that he might easily have got away, he would have been so much to blame as to prevent the plaintiff from recovering. But on the sudden a man may not be sufficiently self-possessed to know what way to decide, and in such case the wrong-doer is the party answerable for the mischief, though it might have been prevented by the other party's acting differently.

This case, however, is much more favorable for the plaintiff than that of Chaplin vs. Hawes. There plaintiff's servant could have turned away with safety. Here Schimpf, when he was near enough to Sliter to make it apparent that the latter would not give way, could not have turned to the left without the greater risk of a collision for which Schimpf would be legally responsible. Hence the finding of the referee that no negligence appeared on the part of the plaintiff was correct.

I think, however, without discussing the matter at length, that, under the ruling of the Court of Appeals in (Gumb vs. Railway Co., 114 N. Y. 411), the referee erred in allowing proof of sums paid by plaintiff to his physician, for medicine, for repairing his bicycle, etc. In the case above cited the Court held it error for the plaintiff to testify as to what he had paid for repairing his wagon, and the amount of his physician's bill, without showing the value of such items. For this error of the referee a new trial will be necessary, unless the plaintiff stipulates to deduct the amount of the items so proved, which is $59.15. The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to deduct from the damages recovered in the action $59.15. If he so stipulate, the judgment should be affirmed, without costs to either party.

Mayham, P. J. concurs; Herrick, J. not voting.