Opinion
January Term, 1897.
A.R. Gibbs, for the appellant.
Tilly Blakely, for the respondent.
Assuming that the holding of the trial judge — that it was not a misdemeanor to ride on a sidewalk on a bicycle in the village of Otego, in violation of section 54 of the village ordinance — was correct, we are of the opinion that a new trial should be granted in consequence of the receipt of evidence objected to by the defendant, and which may have affected the verdict of the jury as to damages.
The charge made by the defendant against the deceased was that she rode on a bicycle on the sidewalk on Main street, in the village of Otego, near the residence of Seth Fancher, on the 1st day of June, 1895. The charge was admitted to be true, but the act admitted, although wrongful, was not under the ruling of the court below a misdemeanor, and hence the arrest and imprisonment of the deceased was wrongful.
On the trial the plaintiff was suffered to show that at the time in question (June 1, 1895), Main street, in the village of Otego, was obstructed, and that when she rode on the sidewalk she was compelled to go thereon by approaching teams. This evidence was not material to the issues in the case. It may have affected the verdict as to damages, and, we think, the objection of the defendant thereto should have been sustained. Such evidence could only be competent on the question of the motive or reason of the plaintiff for going on the sidewalk at the time in question. It was apparently received with that view. On the trial the following question was asked of Ruzilla Fuller when a witness, and the following ruling made by the court: "Q. Why did you enter upon the sidewalk upon your wheel at the point you did that day? [Objected to * * *.] The Court: You went into that, didn't you? Defendant's counsel: Suppose she did; she had no right to ride on the sidewalk, anyway. The Court: But she can explain the reason she rode on it. [Exception by defendant's counsel.] The Court: She had a right to enter on the sidewalk in case of danger. So far as appears now, she had a perfect right to ride on the sidewalk."
In his opinion, on the motion for a new trial, the learned trial judge, however (we think properly), held: "The arrest being unlawful, the motive of the plaintiff in riding upon the walk was of no importance."
It is urged, however, that the evidence in question was admissible, as characterizing the motive of the defendant in causing the arrest of the deceased, on the question of damages. It is difficult to see how this position can be sustained. Although the defendant may have been presumed to know of the rough and obstructed condition of Main street at the time in question, there is no evidence in the case to show that he knew that the deceased turned on to the sidewalk in consequence of meeting teams. Unless he knew that fact, the evidence in question did not in any way bear upon his motive. But, if otherwise, the act of the deceased in riding her bicycle on the sidewalk was not justified by the rough condition of the street or because she met teams. The village ordinance did not prevent her going on to the sidewalk with her bicyle, but merely prohibited her riding on the sidewalk. If the street was obstructed with teams or otherwise, she had the right to alight and walk on the sidewalk with her bicycle. Had the violation of the village ordinance in question been a misdemeanor, the fact that she rode on to the sidewalk in consequence of meeting teams would not have excused her. The obstruction in the street did not justify her willful violation of the village ordinance. It was within her power to have alighted from her bicycle and walked past the obstructed part of the street. Hence, the evidence thus objected to should not have been received as indicating the motive of the defendant or otherwise. The act of the deceased in riding her bicycle on the sidewalk appears to have been an unnecessary, willful and wrongful violation of the village ordinance, although not a misdemeanor. In consequence of this evidence being received, the jury were allowed to find that, in consequence of the highway being obstructed at the time and place in question, the deceased was justified in riding on her bicycle on the sidewalk, and that this fact was known to the defendant, and to consider such evidence as bearing on the motive of the defendant in causing the arrest of the deceased.
The plaintiff also on the trial was allowed to prove a conversation between the defendant and Stillwell, a police officer, several weeks before the arrest in question, in which the former directed the latter to watch the deceased and two other women, and to arrest them if found riding on the sidewalk. We think that the objection to this evidence was well taken. The defendant was a trustee of the village of Otego and Stillwell was a police officer. It is not claimed that if the deceased had been found in the act of riding her bicycle on the sidewalk she could not at the time have been lawfully arrested. It was not in any sense improper or wrongful for the defendant to strive to enforce the village ordinance in question; in fact, it was his duty to do so. It is difficult to see upon what ground his act, in endeavoring to enforce the observance of the ordinance, could be used against him on the trial of this action. His direction to the officer did not indicate any ill-will or malice towards Mrs. Fuller, as he mentioned two other parties at the same time. It simply indicated his desire, as a trustee of the village of Otego, to enforce the observance of one of its ordinances.
There may be some doubt as to whether the testimony taken below, fairly construed, indicated malice or ill-will on the part of the defendant towards the deceased, or anything save the desire on his part, as a public officer, to enforce a legal ordinance of the village of Otego, and to that end to make an example of some prominent person disobeying the ordinance in question — and hence whether the damages were not excessive. Without determining this question, however, and for the reasons above stated, the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
I think the magistrate had the right to issue the warrant upon the information of the defendant, and that, therefore, the motion for nonsuit should have been granted; and I, therefore, concur in reversal.
Judgment and order reversed, with costs.