Fielder v. Tipton

• Decision Date: 20 December 1906
• Citation: 42 So. 985,149 Ala. 608
• Parties: FIELDER v. TIPTON.
• Court: Alabama Supreme Court

42 So. 985

149 Ala. 608

FIELDER v. TIPTON.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Frankie Tipton against John W. Fielder. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Robert E. Gordon, for appellant.

Rickarby & Dunlap and W. S. Anderson, for appellee.

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 demurrers 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 same 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 the injury was due to the negligence of the defendant; (4) that it is not negligent per se to ride a bicycle 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 sidewalk 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 bicycle on the sidewalk. The case of Lee v. City of Port Huron (Mich.) 87 N.W. 637, 55 L. R. A. 308, 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 say 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 want of repair of the sidewalk but the court intimates that such want of repair must be such as would 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 sidewalk. The case of Purple v. Greenfield, 138 Mass. 1, 7, was one in which the plaintiff stepped back to avoid a boy riding on a velocipede, and fell into a cellar window hole, and the court say: "We cannot lay it down as a universal proposition that any and every use of any kind of velocipede upon the sidewalk is unlawful."

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 sidewalk. 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. 654, 21 So. 344, 36 L. R. A. 615. It has also been held that, even without a statute, one who rides a bicycle at night without 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 wherein the Supreme Court of Indiana held that one who rudely and recklessly ran a bicycle against another, who was standing on the sidewalk, was guilty of an assault...