Bernstein v. City of Milwaukee

It is not alleged in the complaint that the playground was maintained in connection with one of the public schools. Neither is it alleged that the playground was unlawfully maintained. The city of Milwaukee, acting through its school board, might provide for public playgrounds. Sub. 1, sec. 435e, Stats. 1913. Independent of this statute, the city might, under sec. 959 — 17i, maintain *578public playgrounds. In the absence of any allegation to the contrary, we must assume that the city acted under power conferred on it by law in establishing the playground in question.

Its action in so doing was not one from which in its corporate capacity it could derive any special benefit or advantage. On the contrary, its action was the result of a duty conferred to conserve and develop the health and strength of future citizens of the state, and thus promote the general welfare of the whole community. Herein lies the distinction between proprietary and governmental functions. Hayes v. Oshkosh, 33 Wis. 314, 318; Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377; Piper v. Madison, 140 Wis. 311, 314, 122 N. W. 730.

It has been decided many times in this court that negligence in the performance of a governmental function by the officers or agents of a municipality does not give a right of action. The cases are reviewed in Evans v. Sheboygan, 153 Wis. 287, 141 N. W. 265. See, further, Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100; and Engel v. Milwaukee, ante, p. 480, 149 N. W. 141.

The exception to this rule is that a municipality may not maintain a public nuisance even where it is performing a governmental duty. Hughes v. Fond du Lac, 73 Wis. 380, 41 N. W. 407; Gilluly v. Madison, 63 Wis. 518, 24 N. W. 137; Schroeder v. Baraboo, 93 Wis. 95, 67 N. W. 27; and Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420. This case does not fall within the exception. The contrivance appears to have been proper enough for children of mature years. The alleged negligence consisted in permitting an immature child to use it. It is not claimed that the city was negligent in installing the appliance or in failing to keep it in a proper state of repair, but in not warning and preventing small children from using it as a plaything.

By the Court. — Order affirmed.