Nemet v. City of Kenosha

• Decision Date: 27 May 1919
• Citation: 169 Wis. 379,172 N.W. 711
• Parties: NEMET v. CITY OF KENOSHA ET AL.
• Court: Wisconsin Supreme Court

169 Wis. 379

172 N.W. 711

NEMET

v.CITY OF KENOSHA ET AL.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Kenosha County; George Thompson, Judge.

Action by Eva Nemet against the City of Kenosha and Greiling Bros. From a judgment for plaintiff, defendant City appeals. Affirmed.

Plaintiff brings this action to recover damages for the death of her son by drowning at or near a municipal bathing beach in the city of Kenosha. Omitting formal matters and matters not material to this appeal, the facts are briefly as follows:

Steve Nemet, a man 23 years of age, went with a companion to a private bathing beach on the shore of Lake Michigan, where they procured bathing suits. To the south of the private bathing beach was the bath house and bathing beach maintained by the city of Kenosha. Steve, who could not swim, remained near the shore, while his companion went to the end of the pier for the purpose of diving off and swimming ashore. Just before jumping into the water, his companion waved to Steve, who was then in water about up to his waist. When his companion reached the shore Steve had disappeared. His companion went to the bath house, where they had left their clothes, dressed, and later Steve's clothes were found locked up. A search was then instituted, and several hours later his body was recovered by the life guards. The city maintained a locker room upon the premises owned by it, it being a riparian owner, and operated a bathing beach in connection therewith. The common council of the city of Kenosha by formal action had declared its bathing beach open to the general public. There had been constructed across the bathing beach owned by the city of Kenosha a trench, in which was laid an intake pipe reaching several hundred feet out into Lake Michigan. Next to the shore, for a distance of 25 or 30 feet, the trench had been filled in, and appears to have been closed by the action of the waves for some considerable additional distance. At a distance of 100 to 125 feet from the shore the trench had not been filled in, and there was a hole some 12 or 15 feet deep where the trench had been dug. At the point where the trench began, the water was from 3 to 3 1/2 feet in depth. At the west end of this hole, nearest the shore line, was found the body of the deceased. The intake pipe was laid by the city as a part of its waterworks system by private contractors. It does not appear that it was any part of the duty of the contractors to fill the trench in which the water pipe was laid, and at the close of the plaintiff's testimony the court granted a nonsuit as to the contractors. About 100 feet from the shore line and parallel with it was maintained a line of floats 3 inches in diameter, the lines being about 100 feet in length. The excavation was beyond the line of floats. The water where the floats were maintained was from 3 to 3 1/2 feet deep. There was nothing to indicate the presence of the hole caused by the digging of the trench. The general line of the excavation was indicated by ranges erected on the shore and out into the lake. It was the claim of the plaintiff that the deceased, while in the exercise of ordinary care, and being upon the premises by invitation of the city, had fallen into the hole and drowned; that the death of the deceased was due to the negligence of the city in maintaining the excavation at or near the bathing beach, and in failing to warn bathers of the presence of the hole.

There was a special verdict. The jury found that the bathing beach in question, at the time Steve Nemet was drowned, was not reasonably safe for public bathing by persons in the exercise of ordinary care, that such lack of reasonable safety was the proximate cause of the death of Steve Nemet, that Steve Nemet was not guilty of any want of ordinary care which proximately contributed to his death, and assessed plaintiff's damages at the sum of $2,250. There were proper motions made by the defendant to present the questions raised here, which motions were overruled, and the plaintiff had judgment, from which the defendant appeals.John C. Slater, City Atty., of Kenosha, for appellant.

Frank S. Symmonds and Robert V. Baker, both of Kenosha, for respondent.

ROSENBERRY, J. (after stating the facts as above).

There was ample evidence to sustain the verdict of the jury and the judgment of the court, if the verdict supports the judgment, and if the city under the circumstances is liable.

[1][2] The defendant's claim is that a municipal corporation is not liable in the performance of a governmental function for the negligence of its officers and agents. It is the settled law of this state that the city, in the maintenance of the bath house and bathing beach...