Fox v. Clarke

• Decision Date: 21 December 1903
• Citation: Fox v. Clarke, 25 R.I. 515, 57 A. 305, 65 L.R.A. 234 (R.I. 1903)
• Parties: FOX v. CLARKE, City Treasurer.
• Court: Rhode Island Supreme Court

57 A. 305

25 R.I. 515

FOX

v. CLARKE, City Treasurer.

Supreme Court of Rhode Island.

Dec. 21, 1903.

Action by John J. Fox against Walter L. Clarke, as city treasurer of the city of Providence. Judgment for plaintiff. On defendant's motion for a new trial. Motion granted.

Argued before STINESS, C. J., and DOUGLAS and BLODGETT, JJ.

John W. Hogan and Philips S. Knauer, for plaintiff. Francis Colwell and Albert A. Baker, for defendant.

STINESS, C. J. The plaintiff brings this suit against the city of Providence for breach of its duty in suffering and permitting Francis street to become unsafe and dangerous for travelers. The plaintiff was riding a bicycle, and he alleges that he rode into a hole or depression which had been worn in the traveled part of the street, so that he was thrown from his bicycle and injured. The defendant made two requests for Instruction to the jury:

"(1) The plaintiff cannot recover, because a bicycle is not a team, cart, or carriage within the meaning of section 1 of chapter 72 of the General Laws of 1896, or of section 15 of chapter 36 of the General Laws of 1896. (2) If the street was safe for travel of ordinary kinds of vehicles, the city is not liable for an accident suffered by a person riding a bicycle on the street"

The first statute referred to imposes upon towns the duty to keep highways in repair, "so that the same may be safe and convenient for travelers with their teams, carts, and carriages"; and the second statute gives an action for breach of such duty. These provisions have been in force for many years, and the real question is whether they are so elastic as to adapt themselves to all newly invented methods of conveyance. As the duty imposed is purely statutory, it is not to be extended unless such extension is made necessary by a reasonable construction of the statute. As it stands, it requires highways to be safe and convenient for "travelers with their teams, carts, and carnages." Bicycles were not in common use—if not unknown— when the statute was adopted, and evidently they were not intended to be included within its scope. Since bicycles came into common use, there have been revisions of the statute, but they have not been included. In State v. Collins, 16 R. I. 371, 17 Atl. 131, 3 L. R. A. 394, it was held that a bicycle was a vehicle within the meaning of a statute requiring one traveling on a highway with "any carriage or other vehicle" to turn to the right. Two things are to be noted in regard to that decision: First, that the words "any carriage or other vehicle" are somewhat broader than the words in the statute relating to highways; and, second, that they were reasonably within the intent of the statute requiring all vehicles to turn to the right to avoid collision, which might happen as well from a bicycle as from any other vehicle. In such case a bicycle may well be held to be a vehicle; but to hold that it is a carriage, with reference to the duty of keeping a highway safe and convenient for its passage, is quite another question. It appears from the statutes that, although bicycles have been the subject of legislative action, no change has been made to broaden the scope of the statutes in question. In May, 1896 (Pub. Laws 1896, c. 345), bicycles were declared to be personal baggage, within the meaning of the law requiring railroad corporations to carry personal baggage. Clearly, this gives no force to the claim that it is a carriage within the meaning of the highway statutes. A more significant act, however, is found in Pub. Laws, c. 757 (January, 1900), which provides specially for a commission of cyclists for the construction of side paths, to be "separated, and distinguished from the main traveled part" of the highway, and to be for the exclusive use of...