
    Jacob F. Schell, Respondent, v. The Town of German Flatts, Appellant.
    Fourth Department,
    January 8, 1908.
    Town—negligence — highways — injury to bicyclist on bridge approach — charge approved.
    The plaintiff, riding a bicycle on an approach to a highway bridge, collided with a pedestrian and was thrown down an unguarded embankment and injured. The highway at the point of the accident was thirty-five feet wide, having on one side a stone coping used as a sidewalk, and on the other, where the plaintiff was riding, a cinder path separated from the main part of the highway .by a small gutter. Although the cinder path was apparently constructed for the use oí bicycle riders there was no proof of such compliance with the statute by the, constructors of the path as to relieve the highway commissioners from the duty of caring for and protecting it.
    
      Seld, that it was proper to charge as matter of law that the cinder path was within the jurisdiction and- under the control of the town highway commissioners and that it was not legally a bicycle path for the maintenance of which they were not responsible;
    That under the proof it was not error to charge in substance that the plaintiff had a right to travel-on the cinder path, and that the jury-should not have been allowed to find that it was.a sidewalk, so-that the act of the plaintiff in riding a bicycle thereon barred-a. recovery.
    McLennan, P. J., dissented,, with memorandum.
    Appeal by the defendant, The Town of German Elatts, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 6tli day of May, 1907, upon the- verdict of a jury for $3,850, and also from two orders entered in said clerk’s office on the 6th day of May, 1907, respectively denying the defendant’s motion for a nonsuit and motion for a new trial made upon the minutes.
    
      A. M. Mills and Frank A. Schmidt, for the appellant.
    
      Eugene A. Rowland, for the respondent.
   Williams, J.:

The judgment and orders should be affirmed, with costs.

The action was brought to recover damages for personal injuries alleged tó have resulted from the negligence of the defendant’s commissioners of highways in leaving an approach to one of the bridges, of the town unguarded.. The plaintiff *-as.riding a bicycle along the approach and came in collision with a pedestrian. He was thrown off his wheel and down the embankment, which was left unguarded, and received serious injuries. A recovery having beep had as a result of the trial before the jui*y, the defendant appeals to this court.

Several questions are suggested as reasons for reversing the judgment and orders, but there is only one that we deem it important to consider in an opinion, viz. : The court held and charged the jury that “ the space * * * between the two railings was all highway; a space which anybody, whether on foot or with a vehicle or with a bicycle, had a right to travel,- and that right was one which was not special to either, but was general to all, and the same law that would control the conduct of a pedestrian, or a person with a team, as to turning out and passing, and the like of that, would apply to the rider of a bicycled’

The court had already held and charged the jury that the place where the accident occurred was a bridge or an approach to a bridge, and was within the jurisdiction and under the control of the defendant’s highway commissioners, and not the village of Mohawk,* and that the place where the plaintiff was riding near the side of the road ivas not legally a side or bicycle path, so as to relieve the defendant’s commissioners of highways from the duty of caring for and protecting it. The court was clearly right in disposing of these two questions as matters of law and withdrawing them from the jury. It is said, however, if the place where the plaintiff was riding was not a side or bicycle path, it was still'a question for the jury whether it was not a sidewalk, as distinguished from the roadbed where vehicles might travel, and if it was found to be such a sidewalk, then the plaintiff was improperly riding upon it, and his right to recover might be defeated by the jury. The whole width of the highway at the place of the accident was thirty-five feet. Upon one side was a walk or coping of stone, used as a sidewalk, and outside of this was an iron fence or railing, the strength and height of which were not complained of. Upon the other side was a cinder path, separated from the main part of the highway by a slight depression or gutter along which surface water flowed when it accumulated in the highway, and outside of this cinder path was a wooden fence or railing. This was the place where the rail was gone, and the embankment was left more or less unguarded, and the absence of which rail was found to be the cause of this accident. This cinder path was constructed apparently for the convenience and use of bicycle riders, but there was not such proof of compliance with the law as to relieve the commissioners of highways from, the care of it as a part of a bridge or approach to a bridge, for the safety of which the commissioners were responsible. It was made quite clear by the evidence that the stone walk on the other side of the highway was generally used by pedestrians, the center for vehicles, and the cinder .path for bicycles. The cinder path was not, properly speaking, a sidewalk for the exclusive use of pedestrians, as the stone sidewalk was. It was never designated or set apart or used as a sidewalk for pedestrians as distinguished, from, vehicles. There was no' dispute about this,. and, therefore, there was no error in the charge by the court in the respect suggested. The jury could not find it to be a sidewalk in such a sense that the plaintiff had no legal right to ride 'upon it with his bicycle. The principal use made of it, ever since it was constructed, was by persons riding upon bicycles. It- was really a bicycle path, and not a. sidewalk and was constructed by persons who were very likely side path commissioners though the proof was not given to make it a legal side' path under the statute. In this condition of the evidence, the cinder path could not possibly be found to be a sidewalk,' so as to deprive the plaintiff of the right to ride upon it, under any rule relating to sidewalks, properly regarded as such.

. We see no reason why the judgment and orders should be reversed. All the questions raised have been fully considered by us. We write only as to the one referred to.

All concurred, except McLennan, P. J., who dissented in a memorandum."

McLennan, P. J. (dissenting):

I dissent upon the ground that the question as to whether or not the place where the accident occurred was a sidewalk should have been submitted to the jury, and if found that it was a sidewalk the jury had a right to take into consideration, as bearing upon defendant’s negligence and also upon plaintiff’s freedom from contributory negligence, the fact that he was riding his bicycle thereon in violation of law ; also upon the ground that the absence of the guard or rail at the place in question was not the proximate cause of the accidént.

Judgment and orders affirméd, with costs. 
      
      See Laws of 1899, chap. 153, as amd. by Laws of 1900, chap. 640; Laws of 1902, chap. 305; Laws of 1904, chap. 342, and Laws of 1905, chap. 605.-- [Rep.
     