Bruhnke v. City of La Crosse

• Decision Date: 13 January 1914
• Parties: BRUHNKE v. CITY OF LA CROSSE.
• Court: Wisconsin Supreme Court

155 Wis. 485

144 N.W. 1100

BRUHNKE

v.CITY OF LA CROSSE.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by William Bruhnke, by guardian, against the City of La Crosse. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.James Thompson, of La Crosse, for appellant.

A. H. Schubert, of La Crosse, for respondent.

TIMLIN, J.

The gravamen of the complaint is: That the city owned and operated certain dump wagons so constructed as to be attractive to children, and dangerous to the children so attracted while the wagon was being dumped. That on April 19, 1912, the city was operating one of these wagons filled with earth and refuse, and the infant plaintiff, five years of age, followed this wagon, and came in contact with the chains forming constituent parts of the dumping device just as one of the employés of the city in charge of the wagon, without notice or warning to the plaintiff, negligently disengaged the dumping device, causing the chains moved by such disengagement to move and draw the infant into or against the pulleys through which these chains passed, with great force, seriously injuring the infant. It is not averred that this employé knew or ought to have known of the presence or proximity of the infant.

A second cause of action is attempted to be set forth in all respects similar to the foregoing except that the person called an employé of the city in the first is called a licensee of the city in the second. The complaint fails to set forth any facts tending to show that the defendant city was operating these wagons in its proprietary capacity, and it is assumed by both counsel that the wagons were used for street cleaning purposes by the city, and on this ground the learned circuit court sustained the demurrer holding that this was a public governmental duty imposed by law upon the city, and hence the latter was not liable respondeat superior, citing Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760;Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377;Higgins v. Superior, 134 Wis. 264, 114 N. W. 490, 13 L. R. A. (N. S.) 994;Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030;Haley v. Boston, 191 Mass. 291, 77 N. E. 888, 5 L. R. A. (N. S.) 1005.

The learned counsel for the appellant invokes the rule of the turntable cases so-called, and annexes to this the rule that a municipal corporation cannot, without incurring liability therefor, operate and maintain a nuisance, citing Harper v. Milwaukee, 30 Wis. 365;Winchell v. Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902; 20 A. & E. Ency. (2d Ed.) p. 1209; Little v. Madison, 42 Wis. 643, 24 Am. Rep. 435;Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565, and other cases.

[1] This is a mistaken correlation of distinct and independent rules. When a city creates a nuisance, it is not exercising a governmental function, but is doing something forbidden by law. Where an object is of a construction not forbidden by law, and in a place authorized by law, it is impossible that it should be a nuisance. It is not unlawful to use dump wagons. If mere...