BERNSTEIN v. CITY OF MILWAUKEE.

[SUPREME COURT OF WISCONSIN, NOVEMBER 17, 1914.]

158 Wis. 576.

Municipal Corporation-Injury to Children-Public Playground.

A municipal corporation is not answerable for injuries sustained by a nine-yearold child from an appliance proper for the use of children of more mature years, which was located in a portion of a public playground devoted to the use of children over twelve years of age.

Appeal by the plaintiff from an order sustaining a demurrer in an action for injuries sustained by a child from an appliance in a public playground. Affirmed.

For appellant-Lehr, Kiefer & Reitman (J. Elmer Lehr, of counsel).

For respondent-Daniel W. Hoan, City Attorney, and E. L. McIntyre, Assistant City Attorney.

The appeal is from an order sustaining a general demurrer to the complaint. The complaint in substance set forth that the city of Milwaukee maintained a playground for children, which was divided into two sections, one being designed for children of the age of twelve years or over, and the other for those under the age of twelve years; that suitable appliances were placed in each of said sections for the use of children of the ages for which they were intended; that a certain appliance placed in the section intended to be used by the older children was a dangerous one when used by children of immature years; that the city

placed such playground under the supervision of certain employees with instructions that such employees should not permit children of the age of twelve years or under to use the portion of the playground set apart for the older children; that such employees violated their duty in that they permitted and invited the plaintiff, who was only nine years of age, to use the portion of the playground intended for the older children, as well as the appliance alleged to be dangerous when used by children under twelve years of age; that by reason of the use of such appliance the plaintiff suffered injury and damage to the extent of $20,000.

BARNES, J. It is not alleged in the complaint that the playground was maintained in connection with one of the public schools. Neither is it alleged that the playground was unlawfully maintained. The city of Milwaukee, acting through its school board, might provide for public playgrounds. Sub. 1, § 435e, Stats. 1913. Independent of this statute,

drowned. In affirming a judgment for plaintiff, the court held that the child was upon the premises by the express invitation of the defendant, and that the defendant owed it the duty to use ordinary care in the construction and maintenance of the reservoir so as to avoid injuring it. The court said: "The city owed to adults and children alike the duty of exercising ordinary care to avoid injuring them anywhere within the boundaries of the public park, and it cannot escape liability for the death of this child by drawing a distinction between the duties the city owed to invitees at different points or portions of the park." City of Anadarko v. Swain, 42 Okla. 741, 142 Pac. 1104 (1914).

C. Falling in Pool or Pond.

In a death action it appeared that a city maintained a large public park through which there ran a small stream or river. At one point a storm sewer emptied into the river. At ordinary times the water in the river was insignificant in quantity, but in times of storm its waters, accompanied by the water from the sewer, became a torrent, swift and turbulent. At the junc

tion of the sewer with the river, the waters of the former had washed out a hole in the bed of the river about sixty feet in diameter and varying from a few inches in depth at the outer margin to from ten to twelve feet in the center. This hole had for years been filled with water and refuse. The river in question was wholly unguarded. With the knowledge, if not the acquiescence of the city, boys and children had been in the habit of wading in the river during the summer months, and skating thereon in the winter. The body of plaintiff's minor son was found in the pool, and from the condition of his clothing it appeared that he had been wading. There was evidence also that children were in the habit of playing about the mouth of the sewer and on the stone steps leading thereto. In affirming a judgment for plaintiff for $2,500, the court held that as public parks were maintained for the safety, recreation, and amusement largely of children of parents whose duties were such as to prohibit them from giving them the full measure of care for their proper development, and for the protection of life and limb, and the separation of such children from vices and dangers which they would otherwise

the city might, under § 959-17i, maintain public playgrounds. In the absence of any allegation to the contrary, we must assume that the city acted under power conferred on it by law in establishing the playground in question.

Its action in so doing was not one from which in its corporate capacity it could derive any special benefit or advantage. On the contrary, its action was the result of a duty conferred to conserve and develop the health and strength of future citizens of the state, and thus promote the general welfare of the whole community. Herein lies the distinction between proprietary and governmental functions. Hayes v. Oshkosh, 33 Wis. 314, 318 [14 Am. Rep. 760]; Manske v. Milwaukee, 123 Wis. 172 [17 Am. Neg. Rep. 388], 101 N. W. 377; Piper v. Madison, 140 Wis. 311, 314, 122 N. W. 730 [25 L. R. A. (N. S.) 239, 133 Am. St. Rep. 1078].

come in contact with, such parks should be maintained in a reasonably safe condition for those who frequented and used them, especially for the unprotected youth; that the "turntable doctrine" had no application in this case; that the question whether the city used ordinary care for the safety of the intestate was for the determination of the jury; that the evidence to the effect that five days prior to the finding of intestate's body, he was last seen wading in the river about one hundred feet from the pool, together with the condition of his clothing when found, was sufficient to sustain a finding that he was drowned in the pool; and that the presumption was that he was exercising ordinary care at the time he was drowned, and also that there was no presumption that he was assassinated. Capp v. City of St. Louis, 251 Mo. 345, 46 L. R. A. (N. S.) 731 (1913).

In a death action plaintiff alleged that defendant owned and maintained a public park, and also maintained therein a pond of water constructed by the city; that the park was in a resi dence portion of the city where many children lived and passed by; that the city kept and maintained open gates to the park, and paths and walks therein

where the public was permitted to walk; that for a long time prior to the accident children had been permitted to resort to the park for amusement and play, and especially when the pond was covered with ice; that no watchman was provided to patrol the pond; that plaintiff's intestate while on his way from school, passed the said park and pond, and observing that the pond was frozen over, went thereon; that he broke through the ice and was drowned at a point where the water was eight feet deep; and that intestate did not know the dangerous condition of the ice, but that said condition was known to the defendant. A demurrer was filed to the complaint, which was overruled, and the defendant appealed. In reversing the judgment and in declaring that the demurrer should have been sustained, the court said: "The maintenance of the park as described in the petition is clearly a governmental function. The city as a corporation derives no benefit therefrom, but the park is maintained for the benefit of the public without regard to residence. The park is not a public highway, and unless the pond therein is an attractive nuisance the city cannot be held liable for the accident upon any principle

It has been decided many times in this court that negligence in the performance of a governmental function by the officers or agents of a municipality does not give a right of action. The cases are reviewed in Evans v. Sheboygan, 153 Wis. 287, 141 N. W. 265 [45 L. R. A. (N. S.) 98]. See, further, Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100 [50 L. R. A. (N. S.) 1147], and Engel v. Milwaukee, 149 N. W. 141.

The exception to this rule is that a municipality may not maintain a public nuisance even where it is performing a governmental duty. Hughes v. Fond du Lac, 73 Wis. 380, 41 N. W. 407; Gilluly v. Madison, 63 Wis. 518, 24 N. W. 137 [53 Am. Rep. 299]; Schroeder v. Baraboo, 93 Wis. 95, 67 N. W. 27; and Folk v. Milwaukee, 108 Wis. 359 [9 Am. Neg. Rep. 207], 84 N. W. 420. This case does not fall within the exception. The contrivance appears to have been proper enough for children of

heretofore recognized by the courts of this state. As described in the petition, and as a matter of common knowledge, the park is not an annoyance to the public, but is a beneficent provision made by the city for open-air recreation and diversion. It adds to the happiness and healthfulness of the thousands who avail themselves of its benefits. The pond in the park adds to its beauty and is accessory to all the beneficent purposes for which the park was established and is maintained."' The court held further that the pond was not an attractive nuisance. Harper v. City of Topeka, 92 Kan. 11, 51 L. R. A. (N. S.) 1032, 139 Pac. 1018 (1914).

II. Falling in Fountain Basin. Plaintiff's intestate, a child five years of age, was drowned in a fountain maintained by defendant city. The fountain was at the intersection of two streets and was constructed as follows: It had a circular basin about forty feet in diameter. The outer wall was built of store and was about twenty-four to twenty-seven inches in height above the surrounding flagging. The inside of the basin sloped downward toward the center. Next to the outer wall the water was about five inches deep, but at the center it reached a depth of three feet.

The top stone of the outer surrounding wall was about eighteen inches wide. This, while affording a seat for adults, was used also by children in walking or running around the fountain. It was not uncommon to see children as young as three years of age running around the fountain on this space. The place and vicinity was attractive to children. Intestate was last seen running around the fountain upon the wall. Later he was found drowned in the deep water near the center of it. No one saw him fall in. He had been absent from home, six blocks away, about an hour. In affirming a judgment for plaintiff, the court held that the trial judge properly left the question of defendant's negligence to the jury; that while the negligence of the parents could not be imputed to the child in the latter's action, it would bar the parents' action, yet their negligence was not made out in such an indisputable way as to justify a holding that they were negligent as a matter of law; and that, as the mother saw the child within an hour before the accident, and that she was busily engaged with household duties, it was for the jury to say whether she was negligent with respect to the child. Jensen v. Kansas City, 181 Mo. App. 359, 7 N. C. C. A. 486 (1914). W. F. A.