|
Schell v. Town of German Flatts, 104 NYS 116, 54 Misc Rep 445 (1907). The plaintiff bicyclist was riding over a bridge, and he was riding on a side path, southbound, on the easterly side of the bridge (in other words, against the flow of normal traffic). He was drafting another bicyclist, and the path was 3 or 4 feet wide. The bicyclists overtook three pedestrians who were walking on the side path, giving them oral warning as they approached. Two of the peds stepped aside to the right, toward the roadway, and the third stepped to the left. The first bicyclist passed, then on of the two who stepped to the right stepped back to the center of the path, and the second bicyclist collided with him. He was thrown from the bicycle and over the wall of the bridge; he caught hold of the coping stones from which the wall was made, held on for a few seconds, then let go, falling 12 to 15 feet to the bottom. He sustained injuries requiring amputation of one leg halfway between his knee and his ankle. The town's alleged liability was a missing rail covering about a 12 foot length which disappeared a few months before the accident. The side path was called a "cycle path," frequented by bicycle riders and footmen, though any part of the road not temporarily obstructed could be and frequently was traversed by wheelmen. The side path was segregated from the main part of the road by a slight depression or gutter for water runoff. It had apparently been built by those responsible for commissioning side paths and it was not a sidewalk; its principal use was for bicyclists, though it was not a legal side path under the statute. There was a sidewalk for the exclusive use of pedestrians on the other side of the bridge. The trial court found for the plaintiff with an award of $3850; the defendant moved for nonsuit, which was denied. A verbatim description of the bridge, from the court's opinion: "This structure occupied a place between a bridge crossing the Mohawk river and a bridge crossing the Erie Canal, thereby making a continuous roadway running north and south. It is built across low lands, covered with running water when the river overflows its banks, and at nearly, if not quite, all other times water stands upon the lands thus crossed in pools of greater or less depth and number. The structure is of masonry, having perpendicular walls on either side, rising 12 to 15 feet from the ground below, with five arches of 12 feet span. At the top the roadway is of dirt and gravel, the surface of which is slightly above the coping of the walls on either side and practically on a level with the floors of the canal and river bridges. Its width, all told, is about 41 feet, and on each side is a railing, about 3 feet from the outer edge, leaving a space within the railings for travel of 35 feet. From the canal bridge to the river bridge is a distance of 479 feet. ...
[...]
"The westerly side of the bridge has a substantial iron rail, nearly 30 inches in height. On the easterly side wooden posts have been set, to which is affixed a narrow board or plank; the lower edge slightly below the surface of the dirt road, and the top coming 2 or 3 inches above the surface. At about 18 inches above this plank are nailed 2x4 string pieces the entire length of the structure. The evidence shows that, some months before the happening of the accident, one of the rails, covering a space of about 12 feet in length, that had been nailed at either end to a post and to one in the middle, disappeared. This was not far from the center of the bridge, and was immediately over one of the arches. The absence of this rail is the defect complained of, which is alleged to have caused the plaintiff's injury."
Same case, 108 NYS 219 (1908). Affirmed. |
|
