53 N.W. 547 (Wis. 1892)
83 Wis. 171
THE CITY OF MADISON, Respondent
Supreme Court of Wisconsin
October 25, 1892
Argued September 3, 1892.
APPEAL from the Circuit Court for Dane County.
The facts are stated in the opinion.
Reversed and cause remanded.
For the appellant there was a brief by Sanborn & Kerr, attorneys, and Rufus B. Smith, of counsel, and oral argument by Mr. A. L. Sanborn and Mr. Smith.
They argued, among other things, that the general rules of liability of persons and corporations towards children are the same as they are in favor of adult persons, with the distinction that a much less strict rule is held in respect to contributory negligence upon their part. Railroad Co. v. Gladmon, 15 Wall. 401; Lynch v. Smith, 104 Mass. 52; Ewen v. C. & N.W. R. Co. 38 Wis. 613. It has never been held, except under local statutes, that a child injured while playing on the street had not the ordinary right to go to the jury on the question of contributory negligence. The cases may be divided into three classes: (1) Where the liability is in favor of persons and property generally, and the accident happens to the child either wholly engaged in play or using the street in the ordinary way. Here it is held, without dissent, that a child has the same rights as an adult. Chicago v. Keefe, 114 Ill. 222; Indianapolis v. Emmelman, 108 Ind. 530; McGuire v. Spence, 91 N.Y. 303; Donoho v. Vulcan Iron Works, 7 Mo.App. 447, approved 75 Mo. 404; McGarry v. Loomis, 63 N.Y. 104; Kunz v. Troy, 104 id. 344; Birkett v. Knickerbocker I. Co. 110 id. 504; Gulf, C. & S. F. R. Co. v. McWhirter, 77 Tex. 356; Vicksburg v. McLain, 67 Miss. 4. (2) Where the liability is purely statutory, is in favor of travelers only, and injury happens to a child engaged in play alone, not being at the time walking or running on the street. Here it is held there can be no recovery. Stinson v. Gardiner, 42 Me. 248; Hill v. Boston, 122 Mass. 344; Blodgett v. Boston, 8 Allen, 237; Tighe v. Lowell, 119 Mass. 472; Lyons v. Brookline, id. 491. (3) Where, as before, the liability is statutory, confined to travelers, and the injury happens to a child while it is using the street for travel and play at the same time. In such a case it is held that there may be a recovery. Blodgett v. Boston, 8 Allen, 237; Gulline v. Lowell, 144 Mass. 491; Hunt v. Salem, 121 id. 294; Bliss v. South Hadley, 145 id. 91. That a child, injured by a defect while seeking diversion, exercise, or recreation upon the street, has the same right as an adult to go to a jury upon the question of contributory negligence, see, also, Birge v. Gardiner, 19 Conn. 509; Kerr v. Forgue, 54 Ill. 482; Strong v. Stevens Point, 62 Wis. 255. The child must have, in such a case, at least the same right as one who was violating the law at the time of the injury. See Sutton v. Wauwatosa, 29 Wis. 21; Phila., W. & B. R. Co. v. Phila. & H. de G. S. T. Co. 23 How. 209; Schmid v. Humphrey, 48 Iowa, 652; Wharton, Neg. sec. 331; Robinson v. Pioche, 5 Cal. 460; Alger v. Lowell, 3 Allen, 402; Cramer v. Burlington, 42 Iowa, 315. The New England rule is that a child engaged exclusively in play upon a highway or street is not a traveler under their local statutes. Blodgett v. Boston, 8 Allen, 237; Hamilton v. Boston, 14 id. 475, 483; Stinson v. Gardiner, 42 Me. 248. But plaintiff was most clearly a traveler, even within the strict construction of those statutes made by the New England courts. Blodgett v. Boston, 8 Allen, 237; Hunt v. Salem, 121 Mass. 295; Gulline v. Lowell, 144 id. 491; Bliss v. South Hadley, 145 id. 91.
Burr W. Jones, for the respondent, contended, among other things, that in Wisconsin the liability of municipalities for injuries caused by defective or insufficient streets is purely statutory, not only as to towns but as to cities. Stilling v. Thorp, 54 Wis. 528, 532; McLimans v. Lancaster, 63 id. 596, 600. The states which reject the doctrine of implied liability and have statutes on the subject, limit the uses to which the highway or street must be kept in repair. Only those who are using the streets as travelers can recover damages under these statutes. It logically follows that in such states there is no liability where children or others are injured on the streets while engaged in playing. Blodgett v. Boston, 8 Allen, 237; Tighe v. Lowell, 119 Mass. 472; Stinson v. Gardiner, 42 Me. 248; Lyons v. Brooline, 119 Mass. 491; Stickney v. Salem, 3 Allen, 374; McCarthy v. Portland, 67 Me. 167; Richards v. Enfield, 13 Gray, 344. It has been held that...