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Bills v. Salt Lake City, 109 P 745, 37 Utah 507 (1910). A bicyclist riding down a street encountered an excavation in the street and was thrown from his bicycle. Judgment for defendant, plaintiff appealed. Reversed and remanded. From the court's opinion: "The next assignment relates to instruction No. 5, which, so far as material here, reads as follows: 'You are instructed that a person riding a bicycle upon a street of Salt Lake City, being at a greater disadvantage with respect to obstructions than a traveler by team or machine, should use a degree of care equal to the risk, to wit, ordinary care as defined in these instructions, and as a matter of ordinary caution and prudence should observe the path or way being traveled, with a view to detect and avoid, if possible, any obstructions that would make it unsafe for a bicycle rider.' The appellant, while excepting to the instructions as a whole, also especially excepted to those portions which we have italicized. It will be observed that in the introductory part of this instruction it is, in effect, assumed by the court that a traveler on a street while riding a bicycle is under all circumstances 'at a greater disadvantage' with regard to obstructions than travelers 'by team or machine.' No doubt the jurors may always apply their general knowledge and experience to the facts in a particular case. They may thus consider the vehicle used by the traveler, if any, and what its peculiar natural characteristics are, and, in this connection, they may consider whether, by reason of the operation of the physical forces or natural laws, a traveler on one kind of a vehicle may be more readily affected by those forces than another on a different kind of a vehicle, but we cannot see how any court can say as a matter of law that a traveler on a bicycle under all circumstances is 'at a greater disadvantage' in traveling on a street than other travelers are who are using different kinds of vehicles. The question whether a bicycle rider or any other person who is injured while passing along a public street has exercised the degree of care required of him by law in view of all the circumstances should ordinarily be left to the jurors. It is for them to say whether in the light of all the circumstances the traveler was or was not 'at a greater disadvantage,' and, for that reason, should have exercised more care than he did. ... What follows in this instruction, however, cannot be considered otherwise than prejudicial to appellant's legal rights. The direction to the jury that it was appellant's duty 'to detect and avoid, if possible, any obstructions that would make it unsafe for a bicycle rider,' imposed a greater duty on him than the law requires. It is no doubt the duty of the traveler on a public street to make use of his senses with a view to avoiding injury, and to that end to exercise ordinary care for his own safety. We know of no rule of law by which the traveler is required to anticipate and thus to keep a special lookout for defects or obstructions in a public street. Every one using a public street has a right to assume, and to act on the assumption, that the streets, to the extent they are open for travel, are in a reasonably safe condition for that purpose. In the case of Pettengill v. City of Yonkers ... the New York Court of Appeals ... states the law upon the subject now under consideration in the following words: 'A person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the daytime or nighttime, relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel have performed that duty, and that he is exposed to no danger from its neglect.' By the foregoing it is not meant that the traveler is not required to look for and avoid defects or obstructions in the street. What is meant is that he need exercise ordinary care only to detect and avoid obstructions or defects that are obvious, and that may or ought to be detected, and hence avoided by the exercise of ordinary care when considered in the light of the law as stated in the foregoing quotation. ... It is accordingly held that the degree of vigilance to discover and remedy defects in streets is greater on the part of servants of the city than is imposed on the traveler to discover and avoid them. ...
"Appellant also complains of instruction No. 6, in which the court, in effect, told the jury that the city owed no greater duty to one riding a bicycle to 'maintain its streets in a reasonably safe condition for travel thereon than to a person riding or driving a horse.' Appellant insists that this, in effect, was a discrimination against the bicycle rider. We do not so construe the instruction. True, the court should not make comparisons as between travelers. The true test for the court to follow is that it is the duty of the city to exercise ordinary vigilance and care to detect defects in its streets and to exercise ordinary care and reasonable diligence to remove them, and to exercise the same care to maintain its streets to the extent that they have been opened for travel in a reasonably safe condition for ordinary use and travel. The streets are intended for such use, and, if they are placed and maintained in a reasonably safe condition for that purpose, the city has discharged its full duty, regardless of whether the streets are used by one kind of vehicle or another, or whether used by one who walks or one who rides a horse." |
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