Commonwealth v. Forrest

170 Pa. 40 | Pa. | 1895

Opinion by

Mr. Justice Dean,

A turnpike road, chartered as early as 1812, extends from the borough of Lewisburg to the borough of Mifflinburg, with an authorized width of roadway of sixty feet. Outside the borough of Lewisburg, and in the township of East Buffalo, is the village of Linnville, which is built up on both sides of and along the turnpike for the distance of about a mile. Although most of the houses are along the turnpike, the village is regularly laid out, and to some extent built upon streets and squares. For a mile on the north side of the turnpike, a smooth footwalk about four feet wide is constructed for the use of the residents of the village. This walk is within the limits of the sixty feet, which the turnpike company had appropriated for its highway, but the walk had been put there by permission of the company. It had been constructed and kept up by contributions from the residents of the village and by the turnpike company, and had been in existence about ten years on July 9, 1894. On that day, Forrest, the defendant, rode a bicycle on this walk, and on information made before a justice by George Kling, an owner of property fronting on it, was arrested for violation of the sidewalk act of May 7, 1889. After hearing, judgment was given against him, and a fine of six dollars for the use of the school district, as directed by the act, imposed. From this judgment, the defendant appealed to the court of quarter sessions, which after a rehearing, reversed and set aside the judgment, and from that the commonwealth appeals. The controlling reason assigned for setting aside the judgment of the magistrate by the learned judge of the court below is, that a bicycle, not being “ a horse or other animal,” as specified in the act of May 7,1889, no penalty can be imposed for propelling it upon a sidewalk.

The 3d section of the act is as follows:

“If any person or persons shall willfully and maliciously ride or drive any horse or any other animal, upon or into any boardwalk or sidewalk or foot way laid, erected or being on and along the side of any road or highway in any township of this commonwealth, or shall otherwise willfully break, injure or destroy the same, the person or persons so offending shall upon conviction thereof before any magistrate, etc., be sentenced,” etc.

Standing by itself, we think this act, being penal in its provisions, would not have embraced the bicycle rider; but read in connection with the act of 23d of April, 1889, an opposite conclusion is clearly warranted. The last named act is as follows:

“ Bicycles, tricycles and all vehicles propelled by hand or foot, and all persons by whom bicycles, tricycles and such other vehicles are used, ridden or propelled upon the public highways of this state, shall be entitled to the same rights and subject to the same restrictions in the use thereof, as are prescribed by law in the cases of persons using carriages drawn by horses.”

The first named act imposed a penalty upon the driver of a horse who should willfully drive him upon any sidewalk in any township within the commonwealth; the last named act subjected the bicycle rider to the same restriction as the driver of the horse; the driver of the carriage and the bicycle have the same rights, and are subject to the same restrictions and penalties; the one by whip and lines drives his horse, with vehicle, upon the sidewalk; the other drives his vehicle upon it with his feet and legs. It will scarcely be disputed that a bicjmler is within the spirit of the act; it is wholly improbable the legislature intended to exempt him. The sidewalk is for foot travelers, men, women and children ; a very few years of observation and experience in the new mode of traveling by bicycle has resulted in the conclusion, that this vehicle is fully as dangerous to those walking on the same road as the carriage drawn by a horse. A carriage, with rider, weighing together two to three hundred pounds, propelled w.ith the speed of a trolley carón a sidewalk, is full of peril to the life and limb of the foot traveler. No bicjmler, with due regard to the safety and rights of his fellows, should demand the use, in common with foot travelers, of a walk with such a vehicle, and the intention of the legislature to debar him from such use is manifest, not only from the terms of the two acts, when read together, but also from the reason and spirit that prompted their passage.

To the argument here, that the act of May 7 only specifies the driving of a horse not hitched to a wagon or carriage, and that although a bicycle may be a carriage or vehicle, yet by no liberality of construction can it be called a horse, we can only answer that such construction of the act is absurd; the legislature declared that “if any person or persons shall willfully or maliciously ride or drive any horse or other animal;” by this, they meant the two and only known methods of using the horse, riding astride of him, or driving him in a vehicle. To suppose they intended to prohibit that, which no one had done or would do, drive a horse by following at his heels on foot, would be altogether an unreasonable interpretation. Where one of two constructions would lead to absurdity, the absurd construction ought not to be adopted: Phila. v. Ry. Co., 102 Pa. 190.

We do not think it material that the informer in this case, had not contributed to the original construction of the sidewalk; nor, although he aided in keeping it in repair, do we think that fact material. It was a sidewalk, by design, construction and use, alongside a highway in a township, and he with his family, had the right to its use to the exclusion of a dangerous vehicle; and this, even though he had in no way aided in constructing or keeping it in repair.

Nor does the fact that the walk was on land appropriated by the turnpike company deprive it of its character as a sidewalk; the company was asserting no right; if it had been constructed and used as a sidewalk by its consent, it had none to assert; that it was so constructed and used clearly appears by the testimony of the company’s manager. And the consent of the company to its use by bicyclers would not avail defendant; a law of the commonwealth cannot be repealed by the manager of a turnpike company. If this was an established sidewalk alongside a highway in a township, as it clearly was, then it is subject to the laws of the commonwealth regulating and restricting its use. It is not in the power of any individual or corporation to license a violation of law.

The further argument of appellee, that he and all other bicyclers have used the sidewalk heretofore without complaint, avails nothing as a defense, for it onty demonstrates the extent of the grievance, which at last became unbearable; such use, in any considerable numbers by such vehicles, of a four feet sidewalk, would soon result in foot passengers, men, women and children, taking to the turnpike for safety ; this would not continue long, until the law would be invoked to decide whether the sidewalk was for foot travelers or for vehicles; whether the bicycler was in the exercise of a lawful right or was an usurper of the rights of others. We have tried to answer this question in this opinion.

Therefore the judgment of the court below is reversed, and it is directed that judgment for the amount of the fine imposed by the magistrate, six dollars, be entered in favor of the commonwealth and against defendant, with costs, appellee to pay the costs of proceedings on this appeal.