Victorson v. Milwaukee & Suburban Transport Co., 30
| Decision Date | 28 October 1975 |
| Docket Number | No. 30,30 |
| Citation | 234 N.W.2d 332,70 Wis.2d 336 |
| Court | Wisconsin Supreme Court |
| Parties | Ernest F. VICTORSON and Lillian M. Victorson, Respondents, v. MILWAUKEE & SUBURBAN TRANSPORT COMPANY, a Domestic Corporation, Appellant. (1974). |
This appeal arises out of an accident that occurred on October 23, 1971. At approximately 1:00 A.M. on that date, the plaintiff Ernest Victorson was a passenger on defendant's bus. While attempting to alight from the rear side door at the bus stop at the intersection of North Green Bay Avenue and Concordia Avenue, Milwaukee, Wisconsin, Mr. Victorson somehow fell. His exact position at the time of the fall and the cause of it are unclear. It is contended that while he was attempting to regain his position and move away from the bus, that vehicle commenced its forward motion. His left leg below the knee was thereby crushed, requiring an above the knew amputation.
Ernest Victorson was sixty-one years old at the time of the accident. Testimony characterized him as being in good health at that time, although his past medical history revealed that he had suffered dizzy spells nine or ten times since his youth. A bartender by trade, Mr. Victorson was on his way home after working for seven hours. He had consumed about seven or eight glasses of beer, starting an hour before his work shift began. In May of 1973, about a year and a half after the accident, this plaintiff suffered a stroke that impaired his ability to communicate; he died early in 1974. His direct testimony was thus available only in the form of an adverse examination.
The adverse examination revealed plaintiff's recollection of boarding the northbound bus at Third and State Streets. As the bus was one block south of Concordia Avenue, he rang the buzzer to signal his intention to alight. While waiting for the stop, he stood in the first of two steps on the rear side door exit. When the bus stopped and the exit light flashed, the plaintiff moved down to the last step and pushed open the door. Although his left foot was still in the bus, the testimony indicates plaintiff stumbled while reaching out with his right foot for the area outside the bus. This area was apparently the street, rather than a curb or the sidewalk; his recollection is that he didn't think the bus was within twelve inches of the curb.
Although he did not at anytime look at the steps, plaintiff believed that 'something with the steps' caused him to stumble; he admitted he could have misstepped as well. The thrust of his testimony is that the loss of balance occurred before his lead foot touched the ground, although the actual cause was unknown. He was unsure if anyone else got off at that stop.
His right knee struck the ground. He remembered attempting to move. As for the bus, he estimated that it began to move a few seconds after he fell, although admitting it could have been as long as ten to fifteen seconds. The next thing he remembered was someone telling him to lie still and being taken to the hospital. A scrape on his right knee was noted in the admissions physical on his transference to another hospital a few days after the occurrence.
Police Officers Robert Ring and Michael Lewandowski arrived at the scene pursuant to a dispatched report of an injured man. They found plaintiff kneeling on the curb with his legs in the roadway, the left one being severely damaged. He seemed composed and not intoxicated. According to their reports, he said: 'When I got off at my stop, stepped off the bus and stumbled and then the bus road over my leg.'
The officers were unable to find any witnesses, although there were people present when they arrived. No defects or debris was noted in the area. At 3:30 A.M. they contacted Lloyd Edward Hawkins, driver of the bus apparently ridden by Mr. Victorson.
Statements given to the officers by Hawkins were, for the most part, corroborated by his more extensive testimony contained in an adverse examination read to the jury. Hawkins noted that the bus could not be driven until the back door closes, and that he heard or felt nothing unusual when the bus pulled away. He remembered that two passengers got on at the intersection of Third and State; and recalls the buzzer ringing at Ring Street, a block south of Concordia. There were no parked cars along the block where the stop was, and the weather was clear and dry. Street lighting illuminated the area. After pulling the bus parallel and 'almost against' the curb, Hawkins recalled that four people got off at that stop.
A young Negro male exited by the front door. Hawkins apparently was aware but did not see plaintiff as he exited, but he did see two ten-aged girls exit from the rear door. His attention was drawn to them because the dashboard light indicating that the side door was open, remained lit: they were 'horsing around', pushing and giggling. He estimated that fifteen seconds elapsed before they left. The police report recorded that Hawkins stated that the girls were at the front door. He claims that he told them the rear door. As soon as the panel light indicating that the rear door was open switched off, he locked the doors and drove off.
Florence Held, a passenger on the bus, also testified. She recalled boarding the bus at Third and State Streets, at 12:45 A.M. on her way home from work: a man boarded at that same stop and alighted from the rear door at the stop at Green Bay and Concordia Avenues. Mrs. Held also recalled two girls 'fooling around' and slowly exiting after the man. She did not hear anything or feel a bump as the bus left that stop.
Another alleged witness, Ronald Roth, who had claimed to have seen the bus drive over plaintiff and who claimed to have yelled to alert the driver, testified at trial that he did not see the accident.
The bus had two steps at the side 'rear' door exit. The risers between steps measured at a height of about ten inches, with a height from the ground to the first step of almost seventeen inches. A signal light over the rear door switches on when that door is unlocked by a lever that controls the opening of the front door and unlocking of the rear door. When that door is opened, another signal light switches on at the instrument panel. The lever that locks the automatically shutting rear door also closes and locks the front door. When the signal on the panel indicates that the rear door is closed and when all passengers exiting via the front door are cleared, the driver moves the lever to close the front and then lock both doors.
The bus had an outside left traffic mirror and a center mirror, the latter capable of viewing the vehicle interior and outside rear area. Testimony of Mr. Frank Bates, a district sales representative for the vehicle manufacturer, indicated that standard equipment for the bus included a small mirror on the right interior, which, coupled with a larger interior mirror over the side stepwell, enabled the driver to see whether the side door was cleared by passengers. The defendant produced Mr. William E. Williamson, a member of various transportation organizations and superintendent of equipment for a large transportation system operating in the St. Louis, Missouri area. He testified that the interior set of mirrors were used mainly when the rear door operation is controlled by the driver. Such equipment, according to his knowledge, was not used or required when interlock equipment is used. This equipment, which locks the brakes and accelerator when the rear door is open, and which allows the passenger to open the door, was utilized on the bus involved. The mirrors were not.
Mr. Bates also testified that a right exterior mirror, similar to the one used on the left, was also available as an option. He believed that some of these mirrors had been purchased by defendant. Mr. Williamson depicted these mirrors as 'not customary' on city busses. Bates believed that these mirrors would be used to observe motorcycles or bicycle traffic that might be endangered by a right hand turn, or to observe right lane traffic when lane changes on a freeway are made.
A film editor of a local television station testified as to having seen news film showing a bus with the right exterior mirror at the terminal used by the bus involved. He did not know where the bus was going or where it had come from.
Max J. Lukas, an instructor for the company, testified that drivers are instructed to let passengers off at a 'safe place,' and to pull close to the curb so as not to block traffic. Drivers were to watch passengers existing via the front door so as to control its operation, but had the signal light to inform them when the side rear door was closed. There was no set policy on remaining stationary for a period after a passenger has apparently alighted.
The case was tried to the court and jury. In its special verdict, the jury found Victorson 35 percent negligent and the defendant transport company 65 percent negligent. The jury awarded $60,000 for pain and suffering, $10,000 for loss of earnings to date, $8,000 for future pain and suffering, $11,500 for loss of future earnings and $10,000 for loss of consortium. The jury also awarded Lillian Victorson $15,000 for loss of consortium and $5,000 for personal nursing care and services rendered to her husband. Defendant appeals from the judgment. The trial court refused to modify the awards to the spouse, but did strike down the award for loss of future earnings. Plaintiff appeals from this latter portion of the judgment.
Further facts will be stated in reference to specific issues raised on this appeal.
Kasdorf, Henderson, Dall, Lewis & Swietlik, Milwaukee, for appellant; John M. Swietlik, Milwaukee, of counsel.
Mulcahy & Wherry, S.C., Milwaukee, for respondents; Michael R. Wherry and Ronald J. Rutlin, Milwaukee, of counsel.
The following issues are presented on appeal:
1. Was there credible evidence upon which the jury could find the defendant...
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