Summary
In Schultz v. Kenosha Motor Coach Lines (1950), 257 Wis. 21, 42 N.W.2d 151, the plaintiff was injured while alighting from a bus that was stopped six or eight feet from the curb, and the step down to the street was 13 1/2 inches, while, had the passenger been discharged at the curb, the step down would have been only 7 1/2 inches.
Summary of this case from Burke v. Milwaukee Suburban Transport Corp.Opinion
March 9, 1950 —
April 5, 1950.
APPEAL from a judgment of the municipal court of Kenosha county: EDWARD J. RUETZ, Judge. Affirmed.
For the appellant there were briefs by Lepp Phillips of Kenosha, and oral argument by David L. Phillips.
For the respondents there was a brief by Hammond Hammond of Kenosha, and oral argument by Walter W. Hammond.
Action for personal injuries sustained by plaintiff when alighting from a trackless trolley bus operated by the defendant upon the streets of Kenosha. From a judgment of dismissal upon a jury verdict in favor of defendant, plaintiff appeals.
At the time of the accident the plaintiff was a man seventy years of age who had for years been a salesman calling upon certain retail customers in Kenosha. He frequently had been a passenger upon the defendant's buses and was known to the defendant's bus drivers.
When a child plaintiff had suffered an attack of infantile paralysis and wore a leg brace until he was ten years of age. About twenty-five years before the accident plaintiff had fractured his bad leg between the hip and knee and had resumed wearing a leg brace at that time. At the time of this accident he walked with the aid of a cane and had a pronounced limp.
The bus with the plaintiff aboard was proceeding on Fifty-Ninth street, an east-west thoroughfare in Kenosha. The ordinances of the city prohibit parking on the south side of Fifty-Ninth street. As the bus approached the intersection of Fifty-Ninth street and Sixth avenue an automobile was parked at the south curb of Fifty-Ninth street about twenty-two feet west of Sixth avenue. The bus driver swung around the parked car and came to a stop with the door of the bus about six or eight feet north of the south curb of Fifty-Ninth street just west of the west crosswalk of Sixth avenue.
The plaintiff, who sat in front, indicated to the bus driver after the bus stopped that he intended to alight at that corner. After other passengers were discharged and some taken on the plaintiff started to get down. He grasped the handrail with his left hand and placed his cane on the step of the bus; he then got both feet on the bus step and from that position reached the ground with the cane. In attempting to get one foot from the step to the ground he lost his balance and fell on his back alongside the bus; his left foot remained on the bus step and there was some evidence that it was partly caught in the folds of half the door.
The step of the bus was thirteen and one-half inches above the street level. It is the position of the plaintiff that on previous occasions he had always been discharged at a curb and that the step down was then seven and one-half inches. It is his contention that the thirteen and one-half inch step was too much for him to negotiate because of his physical handicap.
The case was tried to a jury which found that the driver of the bus failed to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of the defendant's business with reference to providing the plaintiff with a safe place in which to alight.
The jury also found that plaintiff had failed to exercise ordinary care for his own safety. It apportioned the causal negligence of the injuries ten per cent to the bus driver and ninety per cent to the plaintiff.
Plaintiff contends that there is no evidence to support the jury's finding that plaintiff was negligent.
Defendant asks a review of the evidence to determine whether there is evidence to support the jury's finding that the driver failed to furnish a safe place of alighting.
We think it obvious the jury accepted the plaintiff's contention that a thirteen. and one-half inch step was beyond his capacity and that therefore the bus driver was negligent in stopping where he would be required to attempt it. It then apparently concluded that this being the fact, it should have been a danger more apparent to plaintiff than to the defendant's driver, and arrived at the results above described.
We are of the opinion that the result reached is correct, though upon improper grounds.
The plaintiff concedes that the place for discharging passengers was safe for all but him. He had given no notice to the bus driver that he intended to alight at this stop or that he had to be discharged at a curb.
Plaintiff admitted that he had on at least one previous occasion stepped down at a point where there was no curb; the bus driver testified that at one of his stops where plaintiff had frequently alighted there was no curb and that plaintiff had stepped down on those occasions to ground level without incident. There is thus no showing that by arrangement or otherwise defendant owed any greater duty to plaintiff in providing a safe place for alighting than it owed to its other passengers.
The practice is to stop over the curb, but there appears to be nothing in the law requiring it. The industrial commission approved the height of the step, and it is the regulation height of all similar bus steps.
Counsel for plaintiff cite Delamatyr v. Milwaukee Prairie du Chien R. Co. (1869), 24 Wis. 578, where plaintiff, a woman, was injured in jumping from a train to the platform. The court quoted with approval a dissent filed in Siner v. Great Western R. Co. (1868), 3 Law Rep. Ex. 150, 154, 31 Vict.:
"It is said that the cause of the accident was not the distance, but the awkward and careless mode in which the plaintiff jumped down. This again was for the jury, but the fair result of the evidence is, that though an adult male could have jumped down easily, yet a female passenger would encounter some danger in descending. But then the alternative is presented that, if it was dangerous to descend she ought to have returned to her place in the carriage. I am clearly of opinion, however, that a railway company is not entitled to expose any passenger to the necessity of choosing between two alternatives, neither of which he could lawfully be called on to choose; namely, either to go on to Bangor, or to take his chance of danger and jump out; and if they do so, the choice is made at their peril. I agree that if it can be clearly seen by the passenger that the act must be attended with injury, it may then be fairly contended that he is not entitled to choose this obviously and certainly dangerous alternative."
We are of the opinion that this rule has no application in the instant case. The defendant provided a safe place to alight. The plaintiff has failed to produce any evidence from which it can be said that the defendant owed him a greater duty in this respect than it owed the general traveling public.
We conclude that there was no evidence to sustain the jury's finding that the plaintiff was negligent in alighting from the bus. Neither is there any evidence from which a conclusion can be drawn that the defendant was negligent in providing its passengers with a safe place to alight or in any other respect. So far as the record discloses, this appears to have been an unfortunate accident which occurred solely because of plaintiff's physical infirmities. As plaintiff sets out, the mere happening of the accident raises no presumption of negligence on the part of the plaintiff. Likewise, it raises no presumption of negligence on the part of the defendant.
We are therefore of the opinion that the judgment of dismissal of plaintiff's complaint must be sustained.
By the Court. — Judgment affirmed.