
    Minnie Morrison, Respondent, v. The City of Syracuse, Appellant.
    
      Injwy to a bicyclist riding on a plank sidewalk, caused by a depression therein—the city is liable only in a case in which, it would be liable to a pedestrian.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff, while riding on her bicycle about four o’clock in the afternoon on a plank sidewalk on Manlius street in the city of Syracuse, under sanction of a municipal ordinance authorizing bicyclists upon payment of a registration fee to ride upon the sidewalk of that street, in attempting to avoid a lady and child ahead of her on the walk at the intersection of Manlius street and Durston avenue, turned her wheel so as to strike, at the corner of the street, a depression which had been formed by the washing away of the dirt under the plank sidewalk of Durston avenue, causing it to fall away from the Manlius street walk in such a manner as to cause a drop of from six to eight inches at the inner edge of the walk which decreased gradually until it reached the outer edge of the walk, where it was upon a level with the Manlius street walk; at the place where the plaintiff’s wheel passed over it the depression was not to exceed four inches. The plaintiff’s bicycle was overturned and as a consequence she sustained a fracture of her right arm.
    It did not appear that during the daytime pedestrians would have had any difficulty in turning the corner with entire safety, or that any accident had ever happened at this place before.
    
      Held, that the city owed the plaintiff no greater duty in the care of its streets than it owed to a pedestrian;
    That, as it was not shown, except by conjecture, that if the plaintiff had been on foot she would have been injured, the city was not liable in damages for the injuries sustained by her.
    Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 9th day of January, 1900, upon the verdict of a jury for §500, and also from an order entered in said clerk’s office on the 23d day of January, 1900, denying the defendant’s motion 'for a new trial made upon the minutes.
    The plaintiff, while riding a bicycle about four o’clock in the afternoon of September 12,1897, upon the sidewalk at the intersection of Manlius street and Durston avenue, in the city of Syracuse, was thrown from her wheel, in consequence of which she sustained a fracture of her right arm; and it is to recover damages for such injury that this action is brought.
    This case has been twice tried. Upon the first trial the plaintiff recovered a verdict of $300, which was subsequently set aside and a new trial granted by this court. (45 App. Div. 421.) Upon the second trial the plaintiff obtained a verdict for $500, and from the judgment entered thereon, as well as from an order denying the defendant’s motion for a new trial on the minutes, this appeal is brought.
    
      James 8. Thorn, for the appellant.
    
      Frederick A. Funtssch, for the respondent.
   Adams, P. J.:

Upon the first trial, as well as upon the last, it was made to appear that the defendant had adopted an ordinance which permitted any person, upon the payment of a small registration fee, to ride a bicycle upon the sidewalks of certain streets of the city, and that the plaintiff, at the time of the accident, was riding upon the walk in question in pursuance of a license thus obtained. Upon this state of facts, we held that the measure of the defendant’s duty to persons who availed themselves of the privilege granted by the ordinance in question was precisely the same as it was to pedestrians. In other words, that, while required to keep its sidewalks in such a condition as to make them reasonably safe for pedestrians, it was under no obligation to go farther than that and make them reasonably safe for bicyclists, whose right to their use is, to say the least, somewhat questionable, and one which should certainly be subordinated to that of people on foot for whom they were primarily designed.

Gruided by the rule thus enunciated, the learned trial court, upon the last trial, permitted the jury to say, under proper instructions whether the walk in question was in a reasonably safe condition for the use of pedestrians, and expressly charged them that if they found that it was the plaintiff could not recover.

Upon the direction thus given the jury found in favor of the plaintiff, and consequently it now becomes the duty of this court to do what, perhaps, it would have been fairer towards the trial court to have done upon the, former appeal, and that is to determine whether the evidence furnished by the plaintiff will warrant the conclusion reached by the jury. In furtherance, then, of the object which we now have in view, it becomes necessary to advert very briefly to some of the facts of the case which, for the purposes of this review, may be regarded as established.

Manlius street runs east and west; Durston avenue runs north and south and intersects, but does not cross, Manlius street. The sidewalk upon each street was constructed of planks, and at the time of the accident a section of the Durston avenue walk, consisting of the four planks next south of the Manlius street walk, had, by the washing away of the earth upon which it rested, fallen away from the Manlius street walk in such manner as to cause a drop of from six to eight inches at the inner edge. This depression decreased gradually as it extended towards the outer edge of the walk, at which point it was substantially upon a level with the Manlius street walk.

Upon the day in question the plaintiff was riding her wheel upon Manlius street in company with her sister and a gentleman, whom she subsequently married. As the party approached Durston avenue the plaintiff discovered a lady and child ahead of her upon the walk, and in attempting to avoid them she turned the corner at such an angle as to strike this depression at about the center of the walk, and as her forward wheel went into the depression she was thrown to the ground and received the injury of which she complains.

The walk on Durston avenue was four feet in width, and the depression in the center thereof must consequently have been not to exceed four inches; but that this was sufficient to and did produce the result which ensued is not and cannot be seriously questioned. This much being admitted, however, it by no means follows that the defendant’s negligence is established; for, as has already been stated, the defendant owed the plaintiff no greater or other duty in respect to the condition of its walks than it owed to pedestrians, and the plaintiff has failed, we think, to furnish anything more satisfactory than a mere conjecture that if she had been on foot she might possibly have found this defect in the walk as serious and dangerous an obstruction as it proved to be to a person upon a bicycle. The real question, therefore, with which we have to deal is, does such a conjecture furnish the proper basis for the verdict rendered in this case ?

That the walk was in a defective condition cannot, of course, be denied ; that it had been in such condition for several months prior to the plaintiff’s accident is virtually conceded, and it must also be admitted that the defect was of such a character that a person unfamiliar with it would quite probably have met with an accident while attempting to walk over the depression on a dark night, but it is hardly conceivable that a traveler on foot, who was at all mindful of his surroundings, would have found any difficulty in turning this corner with entire safety in broad daylight.

It was not made to appear that an accident of any kind had ever before happened at this place. On the contrary, several of the plaintiff’s witnesses testified that they had walked over the depression frequently without experiencing any difficulty whatever. And while we do not wish to be understood as intimating that under no conceivable circumstances would the defendant be liable for injuries caused by this obstruction to a person riding upon a bicycle, we are firmly of the opinion that the plaintiff, in the circumstances of her case, would have escaped injury had she been on foot, and that, consequently, within the rule laid down by this court upon the former appeal, it cannot with any justice be said that her injuries are chargeable to the negligence of the defendant. It follows that the judgment and order should be reversed and a new trial ordered.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  