Evans v. City of Sheboygan

• Decision Date: 29 April 1913
• Citation: 153 Wis. 287,141 N.W. 265
• Parties: EVANS v. CITY OF SHEBOYGAN.
• Court: Wisconsin Supreme Court

153 Wis. 287

141 N.W. 265

EVANS

v.CITY OF SHEBOYGAN.

Supreme Court of Wisconsin.

April 29, 1913.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by F. R. Evans against the City of Sheboygan. From an order overruling a demurrer, defendant appeals. Reversed and remanded, with directions.Henry A. Detling, of Sheboygan, for appellant.

Edward Voigt, of Sheboygan, and M. C. Mead, of Plymouth, for respondent.

BARNES, J.

This is an appeal from an order overruling a general demurrer to a complaint in an action brought to recover damages for personal injuries sustained through the negligence of a bridge tender employed by the defendant to operate a drawbridge over a navigable stream. The plaintiff was riding a bicycle over the draw of the bridge when he was injured. No notice of injury, such as is required by section 1339, Stats., was served, and the only question involved is whether the plaintiff has a common-law right of action. The question is as close as it is narrow. If, as to travelers over the bridge, the bridge tender was performing a municipal function, the rule of respondeat superior applies. If he was performing a governmental function, it does not apply.

This court is committed to the doctrine that at common law no action could be maintained against a town for damages sustained through a defect in a highway. Stilling v. Town of Thorp, 54 Wis. 528, 532, 11 N. W. 906, 41 Am. Rep. 60;McLimans v. Lancaster, 63 Wis. 596, 600, 23 N. W. 689;Sowle v. City of Tomah, 81 Wis. 349, 351, 51 N. W. 571;Daniels v. City of Racine, 98 Wis. 649, 651, 74 N. W. 553. The reason of the rule is that the duty of opening and maintaining highways is enjoined on towns, cities, and villages by law and for the benefit of the general public, and that, in the performance of these duties, the municipalities are performing a governmental and not a municipal function. The line of demarcation between these two functions is often shadowy, as will be seen from a review of the cases.

It has been held that a city is not liable for damages for property destroyed by fire resulting from the negligence of the firemen employed, because they were performing a public or governmental duty. Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760;Britton v. Green Bay & Fort Howard Water Works Co., 81 Wis. 48, 57, 51 N. W. 84, 29 Am. St. Rep. 856. Nor for the negligence of a fireman in hauling coal for use by the city fire department. Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377. Nor for injury to a person caused by the negligence of a drunken fireman in driving a fire truck. Higgins v. Superior, 134 Wis. 264, 114 N. W. 490, 13 L. R. A. (N. S.) 994. Nor for the action of a city treasurer in selling the property of the wrong person to secure payment of delinquent personal property taxes. Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Hurley v. Town of Texas, 20 Wis. 634. Nor for injuries caused by a board of public works in disposing of city garbage. Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030. Nor for the death of a child caused by the negligence of a school board in permitting sewers to become clogged up. Folk v. Milwaukee, 108 Wis. 362, 363, 84 N. W. 420. Nor for injuries resulting to a pedestrian from permitting children to coast on the streets with bobsleds. Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779. Nor for issuing a license to permit an exhibition of animals on the streets. Little v. Madison, 49 Wis. 605, 6 N. W. 249, 35 Am. Rep. 793. Nor for the negligence of a health officer in performing the duties of his office. Kempster v. Milwaukee, 103 Wis. 423, 79 N. W. 411. Nor for placing a manhole in a street in a negligent manner. Ziegler v. City of West Bend, 102 Wis. 17, 78 N. W. 164. On the contrary, it has been held that a city, in constructing cisterns in which to store water for fire purposes, is performing a municipal function and is liable for damages caused by the negligence of its employés. Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565. And that, in the opening of streets and the assessments of damages and benefits resulting therefrom and in collecting the sums so assessed, a city is performing a corporate, as distinguished from a public, duty and is liable for the tort of an officer in seizing and selling property to pay a void assessment. Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am. Rep. 480. And the same rule is held where a city, in laying out or building a highway, wrongfully invades the property of an abutting owner. Bunker v. Hudson, 122 Wis. 43, 54, 99 N. W. 448;Nicolai v. Vernon, 88 Wis. 552, 60 N. W. 999. Also that a city in furnishing water to private consumers is performing a corporate function and is liable for the negligence of its agents. Piper v. Madison, 140 Wis. 314, 122 N. W. 730, 25 L. R. A. (N. S.) 239, 133 Am. St. Rep. 1078.

In a case which approaches more nearly in its facts to the one we are considering than any other in this court, it was held that there was a liability at common law for the negligence of a bridge tender which caused the death of a person engaged in navigating the river over which the bridge was constructed. Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871.

The Court of Appeals of the Seventh Circuit faced the precise situation which we have before us, and after a full consideration of the Wisconsin cases held by a divided court that there was a liability at common law; Judges Anderson and Grosscup reaching this conclusion while Judge Baker was of a contrary opinion. Naumburg v. City of Milwaukee, 146 Fed. 641, 77 C. C. A. 67.

It may be here remarked that Wisconsin, in adopting the rule of nonliability at common law for injuries caused by defects in highways, followed the lead of the Massachusetts and some other New England courts, and that these courts have carried the rule to what they deem to be its logical conclusion by holding that a city is not liable to...