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Sutphen v. Town of N. Hempstead, 30 NYS 128 (1894). The plaintiff bicyclist, a boy about 12 or 13 years of age, was riding a bicycle about sundown on an east-west road on a hill. The road passed through a deep cut at the top of the hill. There was a gutter or ditch on the side of the road, which had been deepened shortly before the accident. The side of the gutter next to the beaten track was cut down vertically 12 to 18 inches. The beaten track was 25 feet wide, and extended right up to the side of the gutter. It was in good condition with sandy soil and the wheels of vehicles passing over it sinking a few inches. There was no sidewalk, and pedestrians walked along the edge of the road nearest the gutter, so the surface there was packed harder and smoother than the rest of the roadway. The bicyclist was riding on this smoother track when he found the rest of the roadway to be unrideable. His front wheel cut through the soft eart, the side of the gutter gave way, and the boy was thrown into the ditch and injured. The plaintiff testified he could have seen the gutter if had had looked; for this he was held guilty of contributory negligence by the appeals court. The trial court had granted him a judgment in his favor with $1000 in damages; this was reversed with a new trial granted. From the court's opinion: "No claim is made that the road itself was not in good order and safe for the ordinary uses of a highway in the country. It was of ample width for all kinds of travel, and the injury which plaintiff received was primarily due to the fact that he rode his vehicle so near to the gutter that the wheel cut through the soft ground and caused his fall. Reasonable care in the construction and maintenance of highways is the measure of duty resting upon the commissioners of the town, and municipalities are not liable for injuries, the result of accidents which are not, by the exercise of reasonable forethought and prudence, to be anticipated. ...
"... The accident which happened to the plaintiff was unusual, and incidental to the character of the vehicle he was riding. It was not one within the anticipation or apprehension of a reasonable, prudent man, and there was therefore no occasion for extraordinary precautions to prevent it. It cannot be successfully claimed that a larger measure of duty on the part of the commissioners of highways is due to bicycle riders than to persons traveling upon the road in ordinary vehicles. It is apparent that a bicycle rider upon an ordinary country road is exposed to greater dangers than a person riding in a wagon, and the great increase in the users of these vehicles has created a demand for better and safer roads, but under the present highway laws a road in a condition which is reasonably safe for general and ordinary travel is all that the commissioners of highways are bound to maintain. The road in question was safe for travel in ordinary vehicles and on foot, and the evidence did not, in our opinion, permit the conclusion by the jury that the defendant was negligent in its construction and maintenance." |
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