delegated to the legislature for the protec- | W. 205; Johnson v. Chicago, M. & St. P. R. tion of society, but not for the purpose of annoying the public.

The purposes and the actual construction It is not enough to charge in the words of of a bicycle path for exclusive use by bicythe statute unless all that is essential to con-clists may be shown by parol, in the same stitute the offense is stated fully and directly.

of highways by omnibuses, street cars, bicy. | victed, and appeals from an order denying cles, hacks, etc., and is usually conferred a new trial. upon local authority.

State v. Yopp, 97 N. C. 477, 2 S. E. 458; State v. Collins, 16 R. I. 371, 3 L. R. A. 394, 17 Atl. 131; Re Wright, 29 Hun, 357; Alberge v. Baltimore (Md.) 20 Atl. 988; Mercer v. Corbin, 117 Ind. 456, 3 L. R. A. 221, 20 N. E. 132; Elliott, Roads & Streets, pp. 327, 331, 614, 635; 2 Dill. Mun. Corp. 656; Knobloch v. Chicago, M. & St. P. R. Co. 31 Minn. 402, 18 N. W. 106; Bohen v. Waseca, 32 Minn. 176, 19 N. W. 730; Newell v. Minneapolis, L. & M. R. Co. 35 Minn. 112, 59 Am. Rep. 303, 27 N. W. 839.

Mr. Louis A. Reed also for respondent.

Canty, J., delivered the opinion of the court:

1. It will be observed that said § 1 consists wholly of one sentence, and appellant contends that the first clause in the sentence ending with the words "except a bicycle" is wholly disconnected from what follows, does not make sense, or express anything, and that, therefore, this section does not make the driving of "a team or vehicle" upon such a path a crime. We cannot so hold. While the section is not very well worded, it means that "any person who wilfully drives any team or vehicle except a bicycle upon or a bicycle path misdemeanor."

along shall be guilty of a

2. But the section is not expressly confined in its operation to cases of public bicycle Section 1, chap. 43, Laws 1899, reads as paths, or bicycle paths constructed in public follows: "Any person who wilfully injures, streets or highways, and bicycle paths conobstructs, or destroys, or drives any cattle, structed on private grounds for the use of sheep, horse, swine, or other animals, team the public, or to any of them; and according or vehicle, except a bicycle, or wilfully al- to the strict letter of the statute a person lows his cattle, sheep, horse, swine, or other would be liable for injuring, destroying, or animal to be led or driven upon, or to stray driving upon a private bicycle path conalong, a bicycle path constructed exclusively structed by himself upon his own land. for the use of bicyclists, except for the pur- Clearly, the legislature never intended to pose of crossing such paths at street inter- give the section so broad an effect, and the sections, and at private driveways leading act must be cut down by construction so from the street to adjoining premises, and that it will apply only to cases of public bicyfor the purpose of crossing such paths to and cle paths. In our opinion, it is the duty of from the street and adjoining premises the court so to cut down the section by conwhere necessary, shall be guilty of a misde-struction, and, as so construed, it is valid. meanor, and on conviction thereof, be fined not less than (5) dollars or more than fifty (50) dollars, or by imprisonment for not more than thirty (30) days, or both." Under this section an indictment was found against the defendant by the grand jury of Hennepin county, the charging part of which indictment reads as follows: "The said Alfred Bradford, on the 31st day of March, A. D. 1899, at the village of St. Louis Park, in said Hennepin county, then and there being, did wilfully, unlawfully, wrongfully, knowingly, and feloniously drive a team of horses attached to a sled, commonly so called, upon, over, and along that certain bicycle path constructed exclusively for the use of bicycles, said bicycle path being then and there commonly known, designated, and described as the 'Lake Street Boulevard Bicycle Path,' which said bicycle path runs from the city of Minneapolis to Lake Minnetonka, in said county of Hennepin, at a point and place upon said bicycle path where said bicycle path runs along the northern boundary of section 17 in township 117, and range 21 west, in said county of Hennepin and state of Minnesota, said point and place upon said bicycle path not being a street intersection

nor

a private driveway leading from the street to the adjoining premises, and it not being then and there necessary for the said Alfred Bradford to drive said team of horses and sled upon, over, and along said bicycle path, at said point and place, for the purpose of crossing said bicycle path to or from the street and adjoining premises, contrary to the statute," etc. The defendant was con

3. It appears by the evidence in this case that the bicycle path here in question was constructed by the county commissioners of Hennepin county in the summer of 1898, extends from Lake street, in Minneapolis, westward towards Lake Minnetonka, a distance of 12 miles, and was built on the south side of the traveled roadway, and within the boundaries of the public highway, in that county. The path is about 8 feet wide, is separated from the ordinary traveled roadway by a shallow ditch, and the evidence shows that when the county commissioners were constructing the path they intended it for the exclusive use of bicyclists, and the manner of its construction and the use to which it has been put tend to show that it was intended for their exclusive use.

But

appellant contends that the board of county commissioners had no power to set apart a portion of the public highway for the exclusive use of bicyclists. Whether the county commissioners had such power prior to the passage of said chapter 43 we will not consider. That act was approved March 6, 1899, and, in our opinion, § 1 by implication ratified the act of the county commissioners in setting apart, or attempting to set apart, clusive use of bicyclists. The section also by a portion of the public highway for the eximplication authorized the county commissioners thereafter to set apart a portion of a public highway for such exclusive use.

4. But, in our opinion, the indictment is fatally defective because it does not allege that the bicycle path was constructed in, or is a part of, a public highway situated and being in Hennepin county. It is not alleged

that the bicycle path is a public path, and | county commissioners to locate or establish for all that appears by the indictment the a bicycle path, but proceeds on the theory path might have been the private property that such a path is already known and has of defendant, and a part of his own land. a legal existence, and I object to judicially Where the statute does not sufficiently define reading into the body of the law a provision the crime, or set forth all the elements neces- giving the county commissioners such ausary to constitute the offense intended to be thority. The legislature of this state has punished, an indictment is not sufficient never seen fit to provide for or authorize which merely follows the language of the the location of bicycle paths, and, in my statute. State v. Howard, 66 Minn. 309, 34 judgment, until such authority is given to L. R. A. 178, 68 N. W. 1096; State v. Ab- the proper municipal authorities, or until exrisch, 41 Minn. 41, 42 N. W. 543. pressly provided for in some other way, such paths can have no legal existence. The serious objection to this law is that it makes it a criminal offense for a person to trespass upon that which is not known to the law. What is a bicycle path? And when may it be said that one has been lawfully established and laid out, so as to be entitled to the protection of this law? What officer or tribunal has authority to act in that behalf? The opinion of the majority members of this court confers such authority upon the board of county commissioners, but the law itself does not so read, or contain a suggestion or inference of the kind.

The order appealed from is reversed, and the case remanded, with directions to the court below to dismiss the action, and either submit the case to another grand jury, or discharge the defendant, as that court shall deem proper.

Brown, J., concurring:

I concur in the result, but withhold my as sent to the proposition that chapter 43, Gen. Laws 1899, is a valid law, and to the proposition, in effect, that the law should be "cut down by construction" to make it valid. The law confers no power upon the board of

NEW JERSEY COURT OF ERRORS AND APPEALS.

RROR to the Supreme Court to review a E judgment in favor of defendant in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion. Messrs. Queen & Tennant, for plaintiff in error:

The absence of the bolt was not an obvious defect, or such a defect that plaintiff could or should have seen. And if he did see it, the law imposed upon him no duty to con

*Headnote by GUMMERE, J.

NOTE. The duty of an employee to "exercise proper watchfulness" in order to see that machinery does not become defective and dangerous for want of repair is stated by the court In the above case, and might be interpreted to make something of a change in the usual doctrine. But it may be doubted if the court meant to go beyond the ordinary rule which holds an employee llable for failure to guard against risks which are obvious.

That an employee was presumed to know the fact that wing fences at cattle guards were so

Iclude what its absence meant-what results might ensue if the remaining bolt became loose.

The law cannot impose upon a mere laborer the mental effort to figure out what will happen in certain contingencies. The servant does not take upon himself risks incident to the use of unsafe machinery by continuing to use it without objection, after knowledge of its defective character or condition, unless he also understands, or by the exercise of ordinary observation ought to understand, the risks to which he is exposed by its use.

Bailey, Master's Liability for Injuries to Servant, chap. 9, 170, ed. 1894, and cases there cited; Russell v. Minenapolis & St. L. R. Co. 32 Minn. 230, 20 N. W. 147; Cook v. St. Paul, M. & M. R. Co. 34 Minn. 45, 24 N. W. 311; Wuotilla v. Duluth Lumber Co. 37 Minn. 153, 33 N. W. 551.

Whether the defendant was guilty of negligence in not exercising reasonable care in supplying safe machinery and appliances, and in keeping them in safe condition, was a question for the jury, depending upon the facts in the case.

Comben v. Belleville Stone Co. 59 N. J. L. 231, 36 Atl. 473, and cases cited; Western near the track as to be dangerous when hanging low on a ladder to look under a car is decided in McKee v. Chicago, R. I. & P. R. Co. (Iowa) 13 L. R. A. 817.

As to the duty of a brakeman who has ample opportunity to become familiar with a bridge over the track, see Williamson V. Newport News & M. Valley Co. (W. Va.) 12 L. R. A. 297.

For some cases on the general rule as to the assumption of risks, see note to Foley v. Pettee Mach. Works (Mass.) 4 L. R. A. 51.

U. Teleg. Co. v. McMullen, 58 N. J. L. 155-quired momentum, which was stopped by the 159, 32 L. R. A. 351, 33 Atl. 384; Foley v. operator, either by pushing a stick underJersey City Electric Light Co. 54 N. J. L. neath, or by holding the hand against the 411, 24 Atl. 487; Newman v. Fowler, 37 N. flat part of the pulley. On the morning of J. L. 89; Demars v. Glenn Mfg. Co. 67 N. H. the accident, Coyle stopped the loose pulleys 404, 40 Atl. 902. in the usual manner, and, after taking out the plugs from the oil tubes, started to pour in the oil. He did this with his left hand. While he was putting back the plugs into the tubes, the belting was suddenly shifted from the tight to the loose pulley which he was oiling. It immediately commenced to revolve rapidly. One of the spokes struck Coyle's hand, throwing it between the cogs immediately to the left. The result was that he lost two fingers and part of his hand, the use of which was entirely destroyed.

Whether the plaintiff had such knowledge of and experience in the machines as would have informed him of the danger attending the operation of pushing back the old badly worn belt with a stick was a legitimate question for the consideration of the jury. In case of a reasonable ground for difference of opinion upon that subject, the court cannot usurp the province of the jury, or decide as a matter of law what is plainly a question of fact.

Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 29 N. E. 464; Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366; Bridges v. St. Louis I. M. & S. R. Co. 6 Mo. App. 389; Kain v. Smith, 89 N. Y. 375.

The plaintiff had a right to believe that the defendant had provided him with reasonably safe machinery.

North Deutscher Lloyd S. S. Co. v. Ingebregsten, 57 N. J. L. 402, 31 Atl. 619; Union P. R. Co. v. Daniels, 152 U: S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756.

Messrs. Vredenburgh & Garretson for defendant in error.

Gummere, J., delivered the opinion of

the court:

This action is brought by the plaintiff, Coyle, against the defendant company, for personal injuries received by him while at work in their employ. His employment began in September, 1895, and he commenced operating the machine at which he was hurt about three weeks later. His injuries were received in November, 1896. His work upon the machine included the oiling, twice each week, of certain pulleys, which communicated power to it by means of belting which ran to the main shafting of the shop. There were three pulleys to the machine; the outer ones being "loose," and turning on the axle, the inner one being "tight," and fastened to it. The axle, running through the three pulleys, operated machinery at its left end by means of cog wheels. The object of the loose pulleys was to provide a means of throwing the belting off the tight pulley, thus stopping the operation of the machine. The belting ran through a guide in front of the pulleys, and was shifted from the loose to the tight pulley (and vice versa) by means of a lever which ran across the three pulleys. The guide through which the belting ran was fastened to this lever, and extended down over the pulleys like an arm. The pulleys ran at a speed of between 800 and 900 revolutions a minute. The cogs which started the machinery to the left of the pulleys were about 3 inches away from the nearest pulley. There were oil tubes on the inside of the loose pulleys. In order to oil them, the operator would throw the belting on the tight pulley, and thus start the machinery. The loose pulley would continue to revolve for some time by its ac

The ground upon which the plaintiff seeks to impose upon his employer responsibility for the accident from which he is suffering is that, with the machine in proper order, the belt would not have shifted from the tight to the loose pulley. The defect in the machine is said to have been caused by the absence of a bolt which fastened the lever to the guide, and it is claimed, and is beyond question true, that inspection by the master would have led to the discovery of the defect. The machine, as originally constructed, had two bolts making this fastening. The natural result of the absence of one of them, as was shown by the testimony produced on the part of the plaintiff, was to cause the guide to work loose from the level, thereby making it possible for the belting to shift from one pulley to another, although not thrown over by the man operating the machine. After the testimony on both sides was in, the trial that the testimony judge, considering showed, among other things, that the defect in the machine which caused plaintiff's injury was an obvious one, directed a verdict in favor of the defendant. The plaintiff now seeks to set aside the judgment entered upon

that verdict.

That the insecure fastening of the lever to the guide, due to the absence of a bolt, was an obvious defect, and one which the plaintiff, by exercising a reasonable degree of caution, would have discovered, is clearly shown By those by the proofs offered by him. proofs it appears that the bolt had been out for nearly nine months preceding the date of the accident. The plaintiff himself testified that, although he had not observed the absence of the bolt before he was injured, he noticed

immediately afterwards, while standing in front of the machine, that there was but one bolt in the guide, and that there was only a hole where the other one should have been. It cannot be doubted that a defect so easily seen would have been discovered by him had he used ordinary care in observing if the machine fell out of repair. Although the master is charged with the duty to his servant of providing reasonably safe and proper machinery and appliances for the latter to work upon, and of using due care in keeping such machinery and appliances in repair, and of making inspection thereof at proper intervals, the servant who operates a machine or mechanical appliance