This is a petition for a new trial of an action of trespass on the case for negligence against the city of Providence in which the plaintiff was nonsuited.
The declaration alleged that the city of Providence was possessed of a certain machine moved and operated by steam, called a steam roller, which was used by said city in the making and building of streets and highways, and that it was using and operating said steam roller on one of the highways or streets in, to wit, Eoger Williams Park, being a public park in said city of Providence ; that said machine from its appearance alone while at rest, and from its appearance and the loud hissing, screeching noise made and emitted by it *18 when in operation, was an object which would frighten ordinary horses, which fact was well known to said city of Providence, its agents and servants, whereby it became and was the duty and also the custom whenever said city, its agents and servants, were using said steam roller to erect warning signs in the highways or streets, sufficiently remote from the place where said steam roller was at work, to warn and notify all persons with horses, teams, and carriages, that a steam roller was at work near by, or to place a watchman or flagman to give such warning; yet said city of Providence, its agents and servants, etc., so negligently operated said steam roller in and upon one of the main streets or highways in said Roger Williams Park without erecting any sign or giving any notice that the plaintiff who was there lawfully driving in and upon one of the highways in said Roger Williams Park and while in the exercise of due care, came suddenly and without warning, etc., whereby the plaintiff was greatly injured, etc.
The defendant pleaded the general issue, and also specially in bar because it said that the plaintiff then and there had driven into and was driving in said park a laundry team and carriage for the purpose of business without permission from the superintendent of said park contrary to law and the ordinances of said city, then and there in force regulating the use of said Roger Williams Park, to wit, Ordinances of 1887, cap. XXXVI, entitled “Parks,” section 5, reading as follows: “Sec. 5. No person shall drive any heavy team, any swill or residuum cart, or any team or carriage for the purpose of business, into any park, without permission of the superintendent of said park,” and that said plaintiff so driving was a trespasser in and upon said park, and was guilty of a .misdemeanor, punishable by fine as specified in section 11, of said chapter then and there in force reading as follows: “Sec. 11. Any person violating any provision of this chapter shall be fined not exceeding $20, or be imprisoned for not exceeding ten days, for each offence ; ” and that said city did not then and there owe said plaintiff then and 'there trespassing as aforesaid and violating said law as aforesaid said duty alleged in said declaration, etc.
*19 Upon these pleas the plaintiff joined issue and the case was tried to a jury.
The statement of the evidence upon which the petition for a new trial was heard, showed that on the day of the accident the plaintiff had been engaged all day until 5 P. M., the hour of the accident, about his business of collecting and delivering laundry in the city of Providence with a horse hitched into a light covered express wagon with a plain black top without any lettering or sign whatever ; and the plaintiff admitted in his brief that at the time of the accident there were in this wagon "hidden from view two baskets in which packages of laundry were placed. The plaintiff had finished his day’s work except taking his horse and wagon to the stable where they were kept over night, and on leaving Washington Park, so called, below Roger Williams Park, as it was a pleasant day and a little early for him to quit work he turned into Roger Williams Park, intending to go home that way, though not the shortest way, because in his opinion it was so much pleasanter ; and while he was thus driving through the park the injury complained of occurred.
Upon the plaintiff’s resting his case the defendant moved for a nonsuit' on the ground that the plaintiff was using the park “for the purpose of business” in violation of the ordinance above set forth, and the nonsuit was granted, whereupon the plaintiff petitioned for a new trial.
We think a nonsuit in ■ this case was properly granted, though not for the reason for which the motion for a non-suit was sustained.
The evidence of the existence of a highway, in contradistinction to a driveway through a park, is utterly deficient, for none at all appears in the statement of the evidence, nor is there any admission by the defendant that it was a highway. Though there was no direct evidence offered by the plaintiff that Roger Williams Park, so called, was a public park, and no direct or express admission by the defendant that it was a public park, yet we construe the defendant’s whole conduct of the case as a practical admission that the place of the accident was a public park. While it may be that a highway may be extended through a park, yet the difference between the driveways in a park and an ordinary highway is such that if one seeks to recover for injury on a highway in a park the existence of the highway must be proved as such.
“A park,” said Rancher, J., in
People ex rel. Seaver
v.
Green,
The ordinance of the city of Providence already referred to indicates very clearly a distinction between a highway and a park. In the latter no person shall drive any heavy team, or any swill or residuum cart, or any team or carriage, for the purpose of business, etc. By the same ordinance Roger Williams Park shall be opened only at certain hours, to wit, from sunrise until 11 P: M. during a part of the year, and from sunrise until 10 P. M. during the remainder of the *21 year ; and by Gen. Laws E. I. cap. 40, § 24, “ Town councils and city councils may pass such ordinances, by-laws and regulations as they may think proper in relation to the care, management and use of the public parks, squares or grounds within the limits of their respective towns or cities, and may prescribe punishment for the violation thereof by a fine not exceeding $20, or by imprisonment not exceeding ten days for each offence. ”
On the contrary, highways must be kept in repair safe and convenient for. traveller's with their teams, carts and carriages at all seasons of the year, Gen. Laws cap. 72, § 1, and their use is not restricted to purposes other than business.
Another important distinction between highways and parks, is in the manner of liability of towns and cities for the results of injury from negligence in them.
In the lack of any evidence to show that the city had any particular interest or derived special benefit or advantage in its corporate capacity from this park, we think the nonsuit was well granted on that branch of the case, and as to the highway branch we have also expressed our opinion.
The reason we think the ground on which the nonsuit was granted in the Common Pleas Division was not sound, is because, whether the place where the accident happened was a highway or a park, it seems to us that the principle laid down by this court in Baldwin v. Barney, 12 R. I., 392, 397, would be applicable. In that case Durfee, C. J., in delivering the opinion, said : “A defendant who is sued in tort cannot justify the' tort, whether wilful or negligent, by proving that the plaintiff, when injured,. was transgressing the law, so long as the tort and the transgression are independent or disconnected, except in time and place, in their relation to each other.” The law violated in that case was one in relation to travelling on Sunday.
The same doctrine was held in
Baker
v.
Portland,
For the reasons above set forth we think a nonsuit in this case was rightly granted. The petition for a new trial is denied, and the case is remitted to the Common Pleas Division with direction to enter judgment for the defendant for costs.