Christian v. City of New London

• Citation: 234 Wis. 123,290 N.W. 621
• Parties: CHRISTIAN et al. v. CITY OF NEW LONDON.
• Decision Date: 12 March 1940
• Court: United States State Supreme Court of Wisconsin

234 Wis. 123

290 N.W. 621

CHRISTIAN et al.

v.CITY OF NEW LONDON.

Supreme Court of Wisconsin.

March 12, 1940.

Appeal from a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Judge.

Reversed.

Action for damages begun January 5, 1939, by Byron Christian, Sr., and wife against the City of New London for the death of their infant son who was killed when he came in contact with a live wire of the defendant's street lighting system. From a judgment dismissing the complaint on its merits, notwithstanding a special verdict in favor of the plaintiffs, the plaintiffs appeal.

The defendant owned and operated a municipal lighting utility system which supplied public as well as private needs. The accident happened at a point where a line of the street lighting system ran parallel to and near the edge of a public highway. One of these wires which supplied 1,100 volts for street lighting purposes either broke or burned off and fell to the ground. When the plaintiffs' fourteen year old boy came along and picked up the sparking end of this live wire, he was given a severe shock which caused his death almost immediately.

Trial was had to the court and jury. By a special verdict the jury found that the defendant was negligent in maintaining the wire; that the defendant permitted trees to grow so that they came in contact with the wires of the line; that the growth of these trees caused the wire to burn; and that the defendant's negligence was one hundred per cent. The jury fixed the plaintiffs' loss due to the death at $3,500, and the loss of society and companionship at $1,000. Funeral expenses were set by the court at $260. The judgment dismissed the complaint on its merits, and awarded the defendant costs. In its decision on motions after verdict the trial court held that although the defendant was negligent and although the defendant maintained a nuisance, it was nevertheless not liable because it was operating in a governmental rather than in a proprietary capacity. From this judgment, the plaintiffs appeal.

Walter Melchior, of Appleton, and Brazeau & Graves, of Wisconsin Rapids, for appellants.

Giles H. Putnam, of New London, and Robert J. Cunningham, of Janesville (E. W. Wendlandt, of New London, of counsel), for respondent.

FAIRCHILD, Justice.

[1]No bill of exceptions was settled in this case to preserve the testimony. Reference must be to the record and the findings as they appear in the special verdict and the rulings of the court. Fidelity & Deposit Co. v. Madson, 202 Wis. 271, 232 N.W. 525;Ellis v. Frawley, 165 Wis. 381, 161 N.W. 364;Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132; and Parke, Austin & Lipscomb v. Sexauer, 204 Wis. 415, 235 N.W. 785. The answers by the jury to the questions submitted to them by the trial court are to the effect that the plaintiffs' minor son while at a roadside in the city of New London “was fatally injured by coming in contact with a live wire of the defendant's street lighting system line which extended along the side of the highway;” that the wire was inadequately maintained at a place where the defendant “should have foreseen that children might probably be injured by coming in contact with the said wire;” and that the negligence of the defendant was a cause of the injury. These facts must be taken to have been proved at the trial and do sustain a judgment in plaintiffs' favor, unless the city is to be excused from liability because the broken wire happened to be used for lighting the streets which is claimed to be a governmental function. The trial court refused to substitute other findings than those made by the jury. In a memorandum opinion the learned trial judge, after referring to the fact that the defendant had moved for a change of answers made by the jury, said: “The only question in this case, which determines whether or not the plaintiffs are entitled to judgment on the verdict is whether or not the defendant was acting solely in a governmental capacity at the time of the accident.”

[2]The doctrine of respondeat superior has been applied in this state to municipalities in those cases where the city has been negligent in a proprietary enterprise which may or does result in furnishing a benefit to the city. Mulcairns v. Janesville, 67 Wis. 24, 29 N.W. 565;Hollman v. Platteville, 101 Wis. 94, 76 N.W. 1119, 70 Am.St.Rep. 899;Piper v. Madison, 140 Wis. 311, 122 N.W. 730, 25 L.R.A.,N.S., 239, 133 Am.St. Rep. 1078;State Journal Printing Co. v. Madison, 148 Wis. 396, 134 N.W. 909. Compare also: Boutlier v. City of Malden, 226 Mass. 479, 116 N.E. 251, Ann.Cas.1918C, 910;Dickinson v. Boston, 188 Mass. 595, 75 N.E. 68, 1 L.R.A.,N.S., 664; Esberg-Gunst Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rep. 651;Village of Palestine v. Siler, 225 Ill. 630, 80 N.E. 345, 8 L.R.A.,N.S., 205; Stedwell v. Chicago, 297 Ill. 486, 130 N.E. 729, 17 A.L.R. 829;Johnston v. Chicago, 258 Ill. 494, 101 N.E. 960, 45 L.R.A.,N.S., 1167, Ann.Cas. 1914B, 339; Evans v. Sheboygan, 153 Wis. 287, 141 N.W. 265, 45 L.R.A.,N.S., 98; 43 C.J. p. 930, § 1705; 3 Cooley, Law of Torts, p. 245, § 450; note 50; Harper, Law of Torts, pp. 658, 662, § 295; and cases cited in 1 L.R.A.,N.S., 665.

The city of New London is operating a plant for the production, transmission, and delivery of light and power. The legislature has recognized this activity of a municipality as a public utility. Sec. 196.01, Stats. This activity of the municipality places it in the commercial world, for we find no distinction between a utility owned by a corporation, a company, or an individual and a utility owned by a village or city which in any way would exempt it from being classified as a proprietary affair. This city-operated power plant is not under the protection of the doctrine which exonerates a city from liability for the negligence of its agents where the acts done are in the performance of a “governmental function.” Here the city admits that it is a utility but seeks to divide its individuality as such so as to preserve the “governmental function” protection insofar as it lights its own streets. But what occasion is there for such subdivision of its acknowledged business-that...