Erickson v. Vill. of Salem

• Citation: 236 N.W. 579,205 Wis. 107
• Parties: ERICKSON v. VILLAGE OF WEST SALEM ET AL.
• Decision Date: 12 May 1931
• Court: United States State Supreme Court of Wisconsin

205 Wis. 107

236 N.W. 579

ERICKSON

v.VILLAGE OF WEST SALEM ET AL.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for La Crosse, County; Robert S. Cowie, Circuit Judge.

Affirmed.

This action was commenced on the 20th day of March, 1929, by the plaintiff as administrator of the estate of Virgil Erickson, deceased, to recover the pecuniary loss sustained by the father, in the death of his 6 year old son by drowning in a sewer constructed and maintained by the defendant village. At the conclusion of the plaintiff's case, defendants' motion for nonsuit was granted, and judgment dismissing the plaintiff's complaint was entered January 4, 1930. From the judgment so entered, plaintiff appealed.

For a number of years prior to March 12, 1928, when Virgil Erickson, a 6 year old boy, came to his death, the village of West Salem had maintained in said village an open ditch running into a closed sewer or drain. The ditch and sewer were constructed for drainage purposes. In the spring of the year, and at times of heavy rainfalls, the surface waters flowed into the open ditch and thence into the closed sewer. The mouth or opening of the sewer was located about 6 feet from the east line of Mills street and within the limits of the village park, and was about 64 inches wide and 33 inches deep. The sewer extended for a distance of 977 feet without an opening, to a point where it discharged into an open field. There were no bars or guards across the opening of the sewer. Late in the afternoon of March 12 several children, including the deceased, were playing in the vicinity of the open ditch. They were amusing themselves by throwing sticks or floats into the waters of the open ditch, and then retrieving them before they entered the mouth of the sewer. The waters of the ditch were such as nearly to fill the sewer. Virgil threw a piece of wood into the ditch, ran down to the mouth of the sewer, knelt down upon the concrete top of the sewer, attempted to repossess the stick, lost his balance, and was immediately carried into the sewer, with no opportunity afforded his playmates to rescue him. Some time later his body was found where the sewer discharged into the open field. The open ditch and sewer were constructed and maintained by the village in its governmental capacity for drainage purposes.F. E. Withrow and O. J. Swennes, both of La Crosse, for appellant.

Schlabach & Steele and Frank Winter, all of La Crosse, for respondents.

NELSON, J.

We confess, at the outset, that the unfortunate accident involved in this action makes a very strong appeal to our sympathies. If it were possible to permit the plaintiff to recover without doing violence to the established law, each member of this court would experience a feeling of satisfaction, but unfortunately the law is so clear and so well settled that we are compelled to affirm the judgment of the trial court.

[1] The law is established by numerous decisions of this court that a municipal corporation, such as a city or village, is not liable for the negligence of its officers or servants when engaged in the performance of a governmental function or when the relation between the person injured and the municipality is purely governmental in its nature. Nemet v. Kenosha, 169 Wis. 379, 382, 172 N. W. 711;Juul v. School Dist., 168 Wis. 111, 112, 169 N. W. 309, 9 A. L. R. 904;Bernstein v. Milwaukee, 158 Wis. 576, 578, 149 N. W. 382, L. R. A. 1915C, 435;Bruhnke v. La Crosse, 155 Wis. 485, 488, 144 N. W. 1100, 50 L. R. A. (N. S.) 1147;Higgins v. Superior, 134 Wis. 264, 267, 114 N. W. 490, 13 L. R. A. (N. S.) 994;Gensch v. Milwaukee, 179 Wis. 95, 97, 190 N. W. 843;Young v. Juneau County, 192 Wis. 646, 212 N. W. 295;Fiel v. Racine (Wis.) 233 N. W. 611. No extended discussion of the law as established by the numerous cases found in our reports seems necessary or advisable at this time.

[2][3] That parks, playgrounds, drains, ditches, and sewers are established, constructed, and maintained by municipalities acting solely in the performance of governmental functions seems so clear as not to admit of reasonable controversy. The village of West Salem in constructing the open ditch and the closed sewer within its limits and for the benefit of all its residents, acted in its governmental capacity, and was not liable for the negligence of its officers and servants in constructing or maintaining such sewer. The relation between the village and the deceased was that of governor and governed. In constructing and maintaining the sewer no private right was invaded. In this situation we can find no basis for liability. If it be desirable not to exempt municipalities from liability for the negligence of their officers and servants while acting in a governmental capacity such action is for the Legislature. This court cannot change the established law as to such exemption. Apfelbacher v. State, 160 Wis. 565, 152 N. W. 144; Young v. Juneau County, supra.

The plaintiff fully recognizes the established law and concedes that the village is not liable unless the facts of this case bring it within an exception thereto which he claims is...