Britten v. City of Eau Claire
| Decision Date | 08 January 1952 |
| Citation | 260 Wis. 382,51 N.W.2d 30 |
| Parties | BRITTEN et al. v. CITY OF EAU CLAIRE et al. |
| Court | Wisconsin Supreme Court |
On July 6, 1949, the city of Eau Claire had been using a crawler-type tractor with scraper attached to cut sidewalk and boulevard grades. A heavy gate upon the scraper was so constructed and connected with the tractor as to permit it to be raised by means of pulleys, cable and a lever upon the tractor. The power required to operate the gate came from the tractor. After the day's work an employee of the city parked the equipment in a vacant lot. The record does not disclose how long it was intended to leave it there but it does appear that it was left for about a week after the accident. The gate was left raised from the ground leaving sufficient room for plaintiff to crawl under it.
The plaintiff, Bruce Britten, a boy six years and two months old, who was unfamiliar with this type of machinery and had not been instructed as to the dangers connected with it, and an older brother went to the lot to play on the machinery. Plaintiff crawled under the gate. His brother climbed upon the tractor and sat in the driver's seat. He turned to observe his brother and in doing so his arm struck the control lever upon the tractor to move it sufficiently to release the gate which fell by force of gravity upon Bruce's leg and caused him serious injury.
By special verdict the jury found that the city was causally negligent as to the condition in which the tractor and scraper were left; that it ought in the exercise of ordinary care to have known that the equipment as located was likely to attract children to play thereon; that Bruce was causally negligent as to the exercise of care for his own safety, and attributed 80% of the negligence to the city and 20% to Bruce. Upon such verdict judgment dated March 12, 1951 was entered for plaintiff.
The city, with its insurance carrier, appeals.
Stafford & Stafford, Chippewa Falls, Robert F. Pfiffner, Chippewa Falls, of counsel, for Ins. Co.
Ramsdell, King & Carroll and James C. Herrick, all of Eau Claire, for city of Eau Claire.
David F. Nordstrom, Eau Claire, Frank E. Betz and Wilcox & Sullivan, all of Eau Claire, for respondents.
The city contends that at the time in question it was engaged in carrying on a governmental function and that therefore it is not liable. As appears from the verdict the case was tried upon the theory that the injury resulted from the maintenance of an attractive nuisance. The attractive nuisance doctrine as it is applied in Wisconsin generally, without particular reference to municipalities, is that one who 'leaves an instrumentality or premises where children have a right to be or where children by reason of their childish instincts are likely for some apparent reason to be attracted' must 'exercise ordinary care under all the circumstances to prevent injury to children.' Routt v. Look, 180 Wis. 1, 191 N.W. 557, 560.
The city's employee had had previous experience with this machine to indicate to him that it was attractive to children; he had been warned against danger of injury to children unless proper precautions were taken; he had seen children about the area during the day in question and had been instructed to leave the gate down or disconnect the controls. These are circumstances to permit the application of the doctrine of attractive nuisance. Angelier v. Red Star Yeast & Products Co., 215 Wis. 47, 254 N.W. 351.
The city does not argue strenuously against the rule as we have stated it, nor would it, if we understand its position correctly, urge its inapplicability in this case if the actor were a non-public agency. It contends, however, that the rule that a municipal corporation is not liable for the negligence of its employees while engaged in carrying on a governmental function is applicable. The rule has long been recognized in Wisconsin. Pohland v. Sheboygan, 251 Wis. 20, 27 N.W.2d 736. It does not appear, however, from any case which has been called to our attention, nor from our own search, that the question whether a municipality may be held accountable under the attractive nuisance doctrine and under circumstances as are present here has been determined by this court.
The doctrine of attractive nuisance does not apply to municipal corporations when the act creating the instrumentality is performed in the exercise of a governmental function. It does, where it is created when the municipality operates in a proprietary capacity. 38 Am.Jur. 283. So it becomes necessary to determine whether the city in parking the tractor and scraper off the street after completing the day's work of grading for sidewalk and boulevard improvement was engaged in a governmental or a proprietary capacity.
The doctrine that immunity from liability should be granted to the state and municipalities while engaged in governmental operations rests upon a weak foundation. Its origin seems to be found in the ancient and fallacious notion that the king can do no wrong. The rule is one of such long standing and has become so firmly established as a parcel of Wisconsin's jurisprudence, however, that we should hesitate to abandon it. We consider that if it is to be abandoned it is only proper that the request therefor should be made to the legislature. But we do consider that the precedent, lacking support in both logic and reason, should not be so construed as to extend the exemption beyond the boundaries of its previous application. And, since we are not foreclosed by any former decision of this court to consider the direct question before us as a novel one and since none of the precedents disclose a state of facts similar to those which we have for consideration, we conclude that when the city of Eau Claire parked its equipment after completing the day's work it was functioning in its proprietary capacity and therefore subject to the same rules as to liability for the maintenance of an attractive nuisance as is a non-public agency.
Our conclusion is not without precedent. In a case strikingly similar in its facts the Supreme Court of Pennsylvania permitted recovery where it appeared that a road scraper had been parked by a city's employees at the end of their day's work on a vacant lot not belonging to...
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