Opinion
No. 682 (1974).
Argued March 3, 1976. —
Decided April 7, 1976.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Reversed and remanded.
For the defendant-appellant there were briefs by Nonald J. Lewis, John A. Torreano and Kasdorf, Dall, Lewis Swietlik of Milwaukee, and oral argument by Nonald J. Lewis.
For the defendant-respondent there was a brief by James B. Brennan, city attorney, and Charles R. Theis, assistant city attorney, and oral argument by Mr. Theis.
Facts.
This is an action by plaintiff, Leona A. Schattschneider, in tort for damages received when she slipped and fell on a snowbank after alighting from a bus owned and operated by the defendant, Milwaukee Suburban Transport Corporation. Defendant bus company filed a third-party complaint against the city of Milwaukee, and it is the third-party action that is involved in this appeal.
The sequence of events which led to the fall and resultant injuries is as follows: The accident occurred at approximately 8:45 a.m. at a mid-block bus stop located on the south side of Mitchell Street between South Tenth and South Eleventh streets in the city of Milwaukee. The plaintiff had exited from a bus, using the side door. Another bus was ahead of the one from which plaintiff alighted. Both buses had stopped within the 80-foot marked bus stop. A third bus was waiting for the two buses to clear the 80-foot loading zone. Before the plaintiff stepped down from the side door of the bus she observed a three-foot high ridge of snow between her and the cleared portion of the Mitchell Street sidewalk. In attempting to get over the three-foot ridge, she slipped and injured her left ankle. This ridge of snow on the curbline of the sidewalk extended from a point 30 to 34 feet west of the bus stop sign and proceeded westerly to about the crosswalk at Eleventh and Mitchell. The two to four-foot-wide snowbank or ridge ran along and over the south curb of Mitchell Street and also extended from one to three feet onto the traveled portion of the sidewalk. The snowbank on which plaintiff fell had existed at that spot for one month or more.
The city had cleared only the first 30 to 34 feet of the bus loading zone from the bus stop sign westward. The remaining portion, approximately 50 feet, was never cleared by the city. The snow had been last removed from the cleared portion twenty-six days before the accident. It took the city of Milwaukee snow removal crew approximately eleven minutes to clear the first 30 to 34 feet of the bus stop here involved. The sidewalk along Mitchell Street at this bus loading and unloading zone extends all the way from the storefronts to the curb. The sidewalk is all concrete with no grassy area between the sidewalk and curb. Between 8:30 and 9:00 a.m. this sidewalk is heavily traveled. Between 9:00 and 9:15 a.m. the department stores and business establishments in the vicinity begin to open and many pedestrians are going to work. There are also an unusually high number of buses traveling along Mitchell Street at this time and place. The bus barns are located near the intersection of Kinnickinnic and Mitchell streets. Buses from a number of bus routes proceed down Mitchell Street. This area is a transfer corner where bus passengers pick up other buses on other routes. During these periods of heavy pedestrian traffic the entire width of the sidewalk from storefronts to the curb is used by pedestrians as a walkway when it contains no obstruction.
Prior to the trial of this matter the defendant, Milwaukee Suburban Transport Corporation, settled the action of the plaintiff, Leona Schattschneider. Thereafter this action was tried to a jury solely on the issue of liability, if any, between the bus company and the city on the bus company's third-party cause of action for contribution. At the conclusion of the taking of testimony the trial court granted the city of Milwaukee's motion for a directed verdict. The bus company appeals.
Upon the facts set forth, was there a question for the jury to answer as to breach of a duty owed by the city to the plaintiff passenger on the bus? The standard of care devolving upon the city and the factors to be considered in applying such standard are alike set forth in the recent decision of this court in Kobelinski v. Milwaukee Suburban Transport Corp.
(1972), 56 Wis.2d 504, 202 N.W.2d 415.
That standard of care is that: "Generally, a municipality is, with respect to snow and ice on its sidewalks, under the duty of using reasonable care to keep such walks reasonably safe for use by pedestrians, taking into account all of the circumstances involved." (Emphasis supplied.)
Id. at pages 509, 510.
The test as to whether such standard of care has been met is ". . . whether the action of the city was unreasonable under all the circumstances in allowing the condition [ i.e., the three-foot-high snowbank] to remain [here for more than one month]" (Emphasis supplied.)
Id. at page 516.
Circumstances to be considered in determining whether such standard and such test have been met include: ". . . location, climatic conditions, amount of accumulation, impracticability of removal, amount and character of traffic on the sidewalk, and the intended use thereof by pedestrians." As in Kobelinski, the circumstances present in the record will be reviewed circumstance by circumstance.
Id. at page 516.
Location of sidewalk. We deal here with a sidewalk, concrete from store buildings to curb, at the point of an 80-foot zone for the loading and unloading of bus passengers. In the absence of an obstruction the entire sidewalk was used for pedestrians walking parallel to the storefronts. Also, the entire 80-foot loading zone was used by bus passengers for getting to and coming from the buses stopping at the bus stop. In Kobelinski corner bus stop was involved, and there was no showing either of pedestrian traffic on the entire sidewalk from store buildings to curb or of use of the entire loading zone, whatever it may have been in Kobelinski. Climatic conditions. We have here a snowbank, three feet high, on the curbline of the sidewalk that resulted from the shoveling of several snowfalls from the building side of the walk, with the last addition to the embankment made by city workers more than one month before the date of the accident. In Kobelinski the two to three-inch-high mound of snow along the curb existed for less than three weeks. Amount of accumulation. We have here present a three-foot-high embankment of snow between the cleared portion of the sidewalk and the curb at which the bus unloaded its passenger's. Kobelinski dealt with a two- to three-inch accumulation of snow on the curbline of the walk. As to the hazard presented to those who must get over the hurdle, there is a considerable difference between a three-inch hurdle and a three-foot hurdle.
Id. at page 513, also noting: "Sec. 81.15, Stats., provides that no action shall be maintained to recover damages sustained by reason of an accumulation of ice or snow unless such an accumulation existed for more than three weeks."
Id. at page 507.
Impracticability of removal. We have in this record the testimony of the street repair foreman for the city that it took the snow removal crew only eleven minutes to clear the first 30 feet of the 80-foot bus stop zone. In Kobelinski there is no reference in the opinion as to the amount of time involved to clear either the portion that was cleared or the portion of the unloading zone left uncleared.
Amount and character of traffic. We have here undisputed testimony that stores on the street begin to open at approximately 9:00 a.m. and that pedestrian traffic was particularly heavy at the time of the accident, i.e., 8:45 a.m. There was testimony that during such periods of heavy traffic, in the absence of obstruction, the entire sidewalk, buildings to curb, was used by pedestrians as a walkway. In Kobelinski there was no similar showing of particularly heavy pedestrian traffic at the scene and at the time of the accident. There is a difference then both as to amount and character of the traffic on the sidewalks involved in each case.
Intended use by pedestrians. Here we have testimony establishing a regular and heavy use of the sidewalk at the bus loading zone. Here there is no corner loading zone where, particularly in residential areas, buses arrive a half-hour or more apart with only one bus likely to use the zone at any one time. Then clearing only 30 feet of an 80-foot loading zone would clearly be reasonable. The testimony here is that, because of the nearness of the Kinnickinnic bus barns, buses from several routes used this loading zone to take on or discharge passengers. Additionally, it was a transfer stop for bus passengers changing to other bus routes. Thus the use of the 80-foot zone by more than one bus at a time was not only usual but also entirely reasonable. Stacking up buses in order that only one bus would unload passengers at any one time would not serve the needs for mass transit, the convenience of bus passengers or the safety of motorists also using the street. In Kobelinski there was no similar showing as to the heavy use of the sidewalk from buildings to curb for getting on or off more than one bus at a time.
In holding that under all the circumstances here present a jury question was presented as to the city having met its standard of care, we follow and apply the authority quoted in Kobelinski, that: "`. . . if any portion of a sidewalk is negligently left in such condition that pedestrians cannot travel over it with reasonable assurance of safety, by night as well as by day, the municipal authorities may be chargeable with a neglect of this duty to its citizens and the public generally.'" The quote continues: "`On the other hand, it has been held that a municipality is not liable for injuries caused by an obstruction at the side of the walk but not upon the part prepared for travel, if such part is sufficient for the purpose." (Emphasis supplied.) In Kobelinski, under the relevant circumstances there present, this court held as a matter of law that the clearing of a portion of the sidewalk for walking parallel to the buildings and the clearing of 30 to 34 feet of the bus loading zone was "sufficient for the purpose" and met the city's duty to pedestrians. In the case before us, considering the different circumstances here established to be present at the time of the accident, we hold that a jury question was presented as to whether the city met its standard of care and duty owed to this plaintiff when it left uncleared 50 feet of the 80-foot bus loading zone and allowed the three-foot-high embankment of snow to remain on the curbline of the Mitchell Street sidewalk for more than a month.
Id. at page 515, quoting 63 C.J.S., Municipal Corporations, p. 126, sec. 805.
Id. at page 515.
Holding that the jury should have been permitted to decide whether the city breached a duty of ordinary care owed to this plaintiff under all the circumstances, we set aside the order of the trial court in granting the city's motion for directed verdict and reverse the judgment entered following the granting of such motion.
By the Court. — Judgment reversed, and cause remanded for a new trial consistent with this opinion. Costs are awarded to appellant.