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06/28/68 BURKE v. MILWAUKEE & SUBURBAN TRANSPORT

June 28, 1968

BURKE, APPELLANT,
v.
MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, RESPONDENT



Appeal from an order of the Circuit Court for Milwaukee County: Leander J. Foley, Jr., Circuit Judge.

Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is an appeal from an order sustaining a demurrer to plaintiff's action for damages. Plaintiff, Gladys Burke, alleged that on May 15, 1967, she was a passenger on defendant's motor bus. She was injured while alighting from the bus. Three distinct bases for liability are alleged:

"That the operator of said bus, in so stopping the said bus in the particular place where he did, was negligent in that:

"a. He permitted the passengers of said bus, including plaintiff, to leave the bus at a place not designated as a proper and lawful place for such passengers to discharge;

"b. He discharged the plaintiff from said bus at a place whereat it was unsafe for the plaintiff to alight in that

"1. he stopped said bus at such a distance from the curb of said street that plaintiff could not alight from said bus directly onto the sidewalk, in violation of Ord. 101-116 (m) of the City of Milwaukee.

"c. He failed to warn plaintiff of the excessively high down step that existed at the time and place of said discharge."

Defendant, Transport Corporation, demurred on the ground that plaintiff had not alleged facts sufficient to constitute a cause of action. The trial Judge in sustaining the demurrer concluded that allegation "a" was merely a general allegation of law averring negligence and stated no ultimate facts. Allegation "b" was found not to constitute a cause of action because the ordinance (sec. 101-116 (m), Milwaukee Code of Ordinances) *fn1 upon which plaintiff would predicate negligence was not "designed to define the standards of safety for persons in the act of boarding or being discharged from the bus." Allegation "c" was held not sufficient because the trial Judge concluded that merely failing to warn of the height of the step was not negligence in view of the fact that it was not alleged that the plaintiff alighted at a place that was unsafe.

Plaintiff has appealed, relying principally on the contention that the violation of the statute constituted negligence per se, as well as negligence at common law, that under each theory there is a duty to discharge a passenger at a place where he may step directly onto the curb or sidewalk from the bus.

Does Transport Corporation's discharge of a passenger onto the street, rather than within stepping distance of the curb or sidewalk, constitute negligence at common law

We agree with the trial Judge's Conclusion allegation "a" is, at the most, a Conclusion of law. It may not even attain that dignity, for it merely states that the place at which the passengers were discharged had not been designated as a proper and lawful place to discharge passengers. The plaintiff has failed to allege the relationship between the negligence alleged and the fact that the place of discharge was not designated as proper and lawful. We, however, give this allegation a liberal construction, as we are permitted to do by sec. 263.27, Stats., *fn2 and, relating allegation "a" to allegation "b," conclude that plaintiff is alleging the breach of a common-law duty requiring a transport company to stop its bus at a distance from the curb that permits an alighting passenger to step directly onto the curb without first stepping into the street. This is the interpretation given that allegation by the appellant in her brief and in oral argument. While we do not commend the averment as a recommended pleading, we adopt the plaintiff's contention for Discussion purposes only. We are satisfied that so interpreted, the allegation fails to state a cause of action. There is no such common-law duty under the Wisconsin law.

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. This court therein held that there was no duty to discharge passengers only within a distance (both as to height and linear position) from which they could readily step directly onto the curb or sidewalk. The only common-law duty the Schultz Case expressed was the duty to furnish a safe place to alight. The court said:

"The practice is to stop over the curb, but there appears to be nothing in the law requiring it. . . .

"The defendant provided a safe place to alight."

In Reque v. Milwaukee & Suburban Transport Corp. (1959), 7 Wis. 2d 111, 113, 95 N.W.2d 752, 97 N.W.2d 182, it was alleged that the defendant's driver was negligent:

"'. . . in failing to properly park and position his bus in relation to the curb of the sidewalk so as to enable the plaintiff to safely alight and more particularly in parking at an excess distance from the curb making it ...


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