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THE LAW OF CYCLING.

BY ISAAC B. POTTER, OF THE NEW YORK BAR.

HIGHWAYS. -- Highways have no written history, but it is doubtless safe to say that the first highway was created by the first traveller, and its adoption for general use by his successors made it a "public" highway, so that it may be seen that public highways have existed for a length of time commensurate with the history of humanity itself, and the establishment by common usage of a thoroughfare between given points, whether separated by land or by water, and whether travelled on foot or by means of boat or by vehicle of whatever sort, has, from time immemorial, by common consent and by the laws of civilized nations, been held to constitute a highway, and as such to belong to the public and to all the citizens thereof for the full and free exercise of that ancient and fundamental privilege and immunity, to wit: the right to travel thereon by their own selected modes of conveyance.

The people, as proprietors of these parks, may empower their servants -- the Commissioners -- to make and enforce such regulations as may be necessary to maintain the parks, and to restrict the uses of the ways to the respective purposes for which they have been lawfully designed, but this power belongs also to the officers of town, city, and county governments, with reference to public highways, and since it seems to be fairly established that this power is limited to the protection of the rightful and the prevention of the wrongful use of highways, and that none of these officers have authority to exclude any portion of the public from the reasonable and consistent use of the public highways, it may well become a subject of inquiry whether Park Commissioners may lawfully assume so arbitrary a power as to prescribe what particular form of carriage shall be used in the public parks, or exclude from the carriage-way [page 24] a portion of the public who neither intrude upon the rights of other travellers nor inflict any wrong upon the general public.

RIGHTS of WHEELMEN. -- Every member of the community has the right to travel upon the street or highway at all times, either on foot or by such means of conveyance as he may have or see fit to employ. (Coombs v. Purrington, 42 Me. 332; Barker v. Savage, 45 N. Y. 196; Commonwealth v. Temple, 14 Gray 74.)

Each individual in the entire public, as a general rule, and in the absence of especial regulation by law, has as good a right to be upon the common street or highway as any other individual thereof, yet each must use this right in a reasonable manner, so as to give alike reasonable use to the other, (Adolph v. Central Park, 76 N. Y. 530.) The rights are equal, and the duties in the use thereof are equally great and pleasing. (Id.)

IS THE BICYCLE A CARRIAGE? -- The law deals with words according to their ordinary and generally accepted meaning, and the word "Carriage" (implying that which carries) is so defined both by the lexicographers and by the courts in England and America, as to include bicycles, and a bicycle is held by the common law decisions of both countries to be a carriage. (So decided in this country by the Government authorities a! Washington, under advice of the law department in the case of Chandler [1887]; also by N. H.Supreme court in Ladd v. Allen  [1881], and so regarded by Common Councils of Boston, Brooklyn, and other cities, under advice of eminent legal counsel in ordinances relating to use of streets.) The rider of it is the driver of a carriage, and as such enticed to the same rights ant privileges that belong to the drivers of other vehicles which travel the public highways.

The statute law of the State of New York, as will be seen further on, specifically declares that in the laws regulating the use of carriages on the [page 25] public highways the term "carriage" shall be construed to include every vehicle used for the transportation of persons or goods, or either of them. Webster defines a " carriage" to be a vehicle on wheels, a " velocipede" as a carriage for one person, and a " bicycle" as a velocipede having two wheels. Thus, it appears by the agreement of common usage, common law, and legislative enactment, that a bicycle is a carriage, and as the law has never yet undertaken either to restrain citizens from constructing their private vehicles in a manner best suited to their individual tastes and uses or to give to any form of private carriage rights or privileges superior to those of any other form, it may be safely concluded that the general laws regulating travel upon the public highways are applicable 'to wheelmen and to the carriages, which they ride and propel.

THE LAW OF THE ROAD. -- Although the rights and duties of travellers in passing each other on the public highways have by custom come to be generally understood, yet the law does not trust so important a matter to mere usage, but proceeds to lay down upon the open pages of the statutes certain positive regulations by which such travel is controlled.

The statute law of New York provides that "whenever any persons travelling with any carriages shall meet on any turnpike, road, or public highway in this State, the persons so meeting shall seasonably turn their carriages to the right of the centre of the road, so as to permit such carriages to pass without interference or interruption, under the penalty of five dollars for every neglect or offense, to be recovered by the party injured." (N. Y. Rev. Stat., part 1, chap. 20, title 13, sec. 1.) In the interpretation of this section the Supreme Court has decided that the words "the centre of the road" refer, not to the smoothest. most travelled part of the road, but to the center of the worked part, although the whole of the [page 26] smooth or most travelled pathway be upon one side of that centre. (Earing v. Lansing, 7 Wend. 185.) It is no excuse (in case of failure to observe this statute) that the party had no design to offend; that he attempted to prevent collision; that the road on his side was rough and rutty, but smooth on the other side, and that it was more difficult for him than for the other party to turn out. Unless the obstacles to turning were insuperable or exceedingly difficult he is without excuse.

The same statute proceeds: "The owners of every carriage running or travelling upon any turnpike, road, or public highway, for the conveyance of passengers, shall be liable, jointly and severally, to the party injured in all cases for all injuries and damages done by any person in the employment of such owner or owners, as a driver, while driving such carriage to any person, or to the property of any person, and that whether the act occasioning such injury or damage be willful or negligent or otherwise, in the same manner as such driver would be liable." (N. Y. Rev. Stat., part 1, chap. 20, title 13, sec. 6.) The next section is a most important one in that by the broadest possible language it makes the terms of the foregoing sections clearly applicable to bicycles. It reads as follows: "The term `carriage,' as used in this title, shall he construed to include stage coaches, wagons, carts, sleighs, sleds, and every other carriage or vehicle used for the transportation, of persons or goods, or either of them." (Id., sec. 7.)

TRAVELLING IN THE SAME DIRECTION.-A traveller upon the common public street or highway is not bound to give way for another travelling in the same direction who desires to go by him if there is room on either hand for the other to pass without way being given. (Adolph v. Central Park, 76 N. Y. 530.) He is bound to yield way enough for one behind him to pass when it is [page 27] practicable and when he is requested so to do, and when by keeping in his place he will prevent one desiring to drive faster from going by. He is not bound, therefore, to look back or to listen for the coming of another, so as to make clear the way for him. (Id.) If two persons are travelling in the same direction, and the hindermost traveller, in attempting to pass the other, carelessly or negligently collides with him and injures him, or if he recklessly manages his vehicle so as to run into the other carriage and injure it, an action lies at the suit of the party injured, provided he be himself free from fault and could not have avoided the collision by the use of ordinary care. (Center v. Finney, 17 Barb. 94.) In order to excuse the collision in such case on the ground of inevitable accident, it must appear that the collision was unavoidable and without any blame imputable to the defendant.

FOOT-PASSENGERS. -- All persons, including children, have the right to pass and repass on public roads so long as they violate no laws for the common good or for the protection of individuals, and any part of the highway may be used by a traveller, either on business or pleasure, and in such manner as may best suit his convenience or taste, provided he conforms to all laws and well-settled rules connected with such use. (Stinson v. City of Gardiner, 42 Me. 248.) The public, as foot-passengers, have the right to use the carriage-way as well as the sidewalk. (Coombs v. Purrington, 42 Me. 332.) Walking in the carriage-way is not of itself prima facie evidence of want of ordinary care, nor from that fact alone will the law infer negligence. (Id.)

The driver of a carriage or the rider of a bicycle along the streets of a city is bound to anticipate that passengers on foot may be at the crossings. and to take reasonable care not to injure them. If he fails to look out for them, or when he sees, does not, so far as is in his power, avoid them, he [page 28] is chargeable with negligence. (Murphy v. Orr, 96 N. Y. 14.)

But footmen have no right of way at a crossing in a city street superior to that of vehicles. Each have the right of passage in common, and in its use are bound to exercise reasonable care for their own safety and to avoid doing injury to others who may be in the use of the right of way with them. (Barker v. Savage, 45 N. Y. 191.) And so it is decided by the New York Court of Appeals that for a foot-passenger to enter upon a street crossing in a city where the moving vehicles are numerous, and collision with them likely to produce serious injury, without first looking in both directions along the street to ascertain whether any are approaching, and if so their rate of speed, and how far distant they are from the crossing is negligence such as will prevent a recovery of damages in case the foot-passenger is injured by collision. (Id.)

VEHICLES MUST BE KEPT IN ROADWORTHY CONDITION.-- Upon this point it is sufficient to say that when a traveller goes upon the public roads, the law presumes that his carriage should be in such good roadworthy condition as to make it fit for the journey which he undertakes, and if by the neglect of the proper care which a prudent man would give to his carriage, it breaks and thereby causes damages to an innocent traveller, the offender may be held to answer in a suit at law. (Welsh v. Lawrence, 2 Chitty, 262; Smith v. Peck, 2 Peck, 621.)

SUMMARY.-The bicycle is a carriage, and the wheelman may go upon the public highways at all times possessed of the same rights and liable only to the same restrictions to which the drivers of other carriages are subject. He must keep his wheel in safe, roadworthy condition, keep to the right of the centre of the highway when meeting other vehicles, give way when necessary to drivers passing in the same direction who may desire to pass him, exercise proper care to prevent collision [page 29] with other carriages and with travellers on foot, and in general the degree of care which he is required to exercise is such as a person of ordinary care and prudence would exercise in the particular case in which the question arises. The law favors courtesy, though it does not demand it, and in the face of the existing prejudice against bicycles the exercise of deference, compatible with dignity under trying circumstances, will, in case of a trial at law, go far toward winning the favor of court and jury, and exemplify the soundness of the maxim,

"Thrice is he armed that hath his quarrel just."