Lempke v. Cummings
| Decision Date | 16 November 1948 |
| Parties | LEMPKE et al. v. CUMMINGS et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment dismissing a complaint entered in the Circuit Court for Outagamie County; M. G. Eberlein, Circuit Judge.
Action by Lorraine Lempke, a minor, by Arthur Lempke, her guardian, and others against William Cummings and another, for injuries. Judgment for defendants, and plaintiffs appeal.-[By Editorial Staff.]
Reversed and new trial ordered.
This is an appeal by the plaintiffs from a judgment dismissing their complaint, dated May 8, 1948. At the conclusion of the testimony on a trial before a jury, the court granted the motion of the defendants for a directed verdict and the judgment was accordingly entered thereon with costs in favor of the defendants and against the plaintiffs in the amount of $156.65. The action was commenced by service of the summons and complaint on or about October 2, 1947.
Immediately prior to the accident on October 27, 1945, the plaintiff, Lorraine Lempke, age 13, was riding as a passenger in a bus owned by defendant George Jones and operated by defendant Cummings. The bus was used for the transportation of school children from Shiocton to their homes on a fare paying basis of $1.00 per week per student.
The afternoon of the accident the bus was proceeding southerly from Shiocton on Highway 76 which is a concrete roadway sixteen feet in width with five-foot gravel shoulders on either side. Upon reaching the intersection of this highway with a graveled town road approximately one-half mile north of the plaintiffs' residence, the bus driver turned the bus left or east onto the town road. This town road has a graveled surface twenty-four feet in width. On the south edge thereof was a heavily grass grown shoulder some two feet in width. Immediately beyond the shoulder and to the south the surface slopes abruptly downward to form a ditch some sixteen inches in depth, also heavily grown with grass and weeds.
At the site of the plaintiff's injury was a galvanized iron culvert, sixteen inches in diameter, extending northerly under the graveled roadway, the end of which lay hidden in the grass at a point two and one-half feet south of the south edge of the graveled roadway. At the end of this culvert a sharp steel prong extended upward a distance of some three inches but was concealed from ordinary observation by the vegetation surrounding it.
This culvert is located thirty-seven feet east of the east edge of the concrete on Highway 76. At the point of its intersection with Highway 76 the graveled road flared out or widened to a considerable extent. Other facts will be stated in the opinion.
Benton, Bosser, Becker, Parnell & Fulton, of Appleton (John B. Menn, of Appleton, of counsel), for appellants.
Harry P. Hoeffel, of Appleton, for respondents.
The dispute in this case is whether the defendants violated their duty to the plaintiff, Lorraine Lempke, (a) in failing to provide her a safe place to alight, and (b) in failing to permit her to reach a place of safety before starting up the vehicle.
Four girls got off the bus at the corner. Three of them walked single file in a westerly direction towards the rear of the bus. They were followed by the plaintiff, Lorraine Lempke, who stepped to the ground. She testified that the bus then immediately started forward and she became apprehensive that she would be struck by the outward swing of the rear end of the bus as it swung out into the highway. To get out of its way she took one step backwards and into the depression formed by the ditch at the south end of the culvert. In so doing, she tripped or stumbled over the edge of the culvert which had this steel splinter which caused the injury complained of.
Lorraine Lempke hopped up and went into the middle of the road and the bus at that time was about fifty feet away. She and her sister, Helen Lempke, testified that on this occasion the bus stopped much closer to the edge of the grass than it had theretofore. Previously the bus was stopped nearer to the center of the highway so that the passengers were able to alight safely, clear the bus, and remain on the graveled area.
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Mount Pleasant Independent School Dist. v. Estate of Lindburg By and Through Lindburg
...(La.Ct.App.1962). In another the children or their families directly paid the carrier for the privilege of transport. Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948). Another case cited relied on the parties' concession regarding the standard of care and cited a case involving third-......
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GALLANT BY GALLANT v. Gorton
...with the practical operation of the bus"); accord, Webb v. City of Seattle, 22 Wash.2d 596, 157 P.2d 312 (1945); Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948) (same The Massachusetts Appeals Court has adopted this reasoning holding a school bus operator to a higher level of care in......
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Yeager v. Morgan
...be suffered by the plaintiff; it was merely necessary that he foresee that some harm would likely follow." Lempke et al. v. Cummings et al., 253 Wis. 570, 34 N.W.2d 673, 675 (1948). After reviewing our state's case law, as well as the case law of other jurisdictions, we believe a dismissal ......
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Estate of Lindburg v. Mount Pleasant Independent School Dist.
...596, 157 P.2d 312 (1945); Leach v. School District No. 322 of Thurston County, 197 Wash. 384, 85 P.2d 666 (1938); Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948). We have examined the policy reasons for requiring a high degree of care by a common carrier, and we find no reason why th......