Reque v. Milwaukee & Suburban Transport Corp. ( 1959 )

Currie, J.

It is our conclusion that the complaint is fatally defective in failing to properly allege essential facts establishing that the asserted negligence of the bus operator was a cause of the plaintiffs injuries.

The crucial paragraph of the complaint reads as follows:

“That on information and belief the said fall was caused as a direct and proximate result of the negligence of the said agent and employee of the defendant while engaged in the course of his employment 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 impossible for the plaintiff to step from the said center door to the curb and thereby causing her to fall into the street between the said door and said curb.”

The negligence which is alleged on the part of the bus operator is in parking the bus “at an excess distance from the curb.” Giving the complaint the liberal construction to which it is entitled, we deem such allegation of negligence is sufficient to allege a violation of sec. 85.19 (2) (a), Stats. 1955. This statute prohibits any motor vehicle being parked “upon any street unless parallel to the edge of the street, headed in the direction of traffic, on the right side of the street, and with the right wheels of the vehicle within 12 inches of the curb or edge of the street. . . .” Such statute is applicable to the temporary stopping of a bus. Jeffers v. Peoria-Rockford Bus Co. (1957), 274 Wis. 594, 80 N. W. (2d) 785.

However, the allegation, that plaintiffs fall “was caused as a direct and proximate result” of the bus operator’s negligence, in parking the bus at an excess distance from the curb “thereby causing her to fall into the street,” states a mere conclusion of law. Schmidt v. Wisconsin Sugar Co. (1922), 175 Wis. 613, 618, 186 N. W. 222, and Howard v. Redden (1919), 93 Conn. 604, 107 Atl. 509, 7 A. L. R. 198. It is elementary that a demurrer does not admit the truth of allegations which are mere conclusions of law. Zache v. West Bend (1954), 268 Wis. 291, 293, 67 N. W. (2d) 301, and 4 Callaghan’s, Bryant, Wisconsin Pleading and Practice (3d ed.), p. 48, sec. 22.40.

This court in Ludwig v. Wisconsin Power & Light Co. (1943), 242 Wis. 434, 440, 8 N. W. (2d) 272, stated:

“To raise an issue of negligence a complaint must allege the fact of action or nonaction relied on, and all facts necessary to render the fact proximately causal.”

Under certain circumstances the allegations of negligence in a complaint coupled with those of injury may give rise to an inference of causation which will support a further allegation that the alleged negligent act, or acts, caused plaintiffs injury. An example of this would be an allegation that the operator of a vehicle failed to keep a proper lookout and that such failure caused a collision with another vehicle thereby injuring the plaintiff, a passenger therein. However, the fact that in the instant complaint the bus operator is alleged to have parked the bus more than 12 inches from the curb does not supply such inference of causation. Some other fact is necessary to be alleged, which concurred with the negligent parking, in order to spell out causation. An allegation of a dangerous condition in the pavement onto which the plaintiff was forced to step in alighting, or that a cyclist passing the bus on the right struck her, might suffice.

The most likely inference to be drawn from the instant complaint as to causation is that, because the bus was stopped more than 12 inches from the curb, the plaintiff in alighting was forced to step down a greater distance than if the bus had been properly parked at the curb. However, this has been held insufficient to spell out a cause of action. Schultz v. Kenosha Motor Coach Lines (1950), 257 Wis. 21, 42 N. W. (2d) 151. For situations in which there may be liability on the part of a bus owner or operator to an alighting passenger, see Anno. 9 A. L. R. (2d) 938.

Because the plaintiff elected to appeal instead of pleading over, with the result that the twenty-day period allotted for serving an amended complaint has long ago expired, she should not be denied such privilege of pleading over. Cross v. Leuenberger (1954), 267 Wis. 232, 65 N. W. (2d) 35, 66 N. W. (2d) 168. The order appealed from will, therefore, be modified so as to grant such privilege.

By the Court.- — Order modified so as to grant to the plaintiff the privilege of serving an amended complaint within a period of twenty days from the remittitur of the record to the circuit court, and, as so modified, the order is affirmed.