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and clearly-defined duty is enjoined in consideration of the privileges and immunities which the act of incorporation confers and secures. Where such a duty of general interest is enjoined, and it appears, from a view of the several provisions of the charter, that the burden was imposed in consideration of the privileges granted and accepted, and the means to perform the duty are placed at the disposal of the corporation, or are within their control, they are clearly liable to the public if they unreasonably neglect to comply with the requirement of the charter; and it is equally clear, when all the foregoing conditions concur, that, like individuals, they are also liable for injuries to person or property arising from neglect to perform the duty enjoined, or from negligence and unskillfulness in its performance."
The case was accordingly reversed.
The defendant in error cites four cases to support the proposition that in the operation of the bridge the city is engaged in the performance of a purely governmental duty: Daly, Adm'r, v. New Haven, 69 Conn. 6+1, 38 Atl. 397; Butterfield v. Boston, 148 Mass. 544, 20 N. E. 113,2 L. R. A. 447; Corning v. Saginaw, 116 Mich. 74, 74 N. W. 307, 40 L. R. A. 526; and French v. Boston, 129 Mass. 592, 37 Am. Rep. 393.
French v. Boston was an action for damages alleged to be caused by the detention of plaintiff's schooner by the superintendent of a draw in a bridge. The court held that the duty imposed was a public duty, and therefore held the city not liable. There is no discussion of the question, no recognition of the well-settled distinctions in such cases, and no authorities are cited. The conclusion reached in that case is precisely the opposite of that reached in the case of Weisenberg v. Winneconne, supra, while in their facts the cases are practically identical.
Butterfield v. Boston in its facts is much like the case at bar, but the scope of the decision may be seen by the first sentence of the opinion:
“This case was tried upon the second count in the declaration, and the only question before us is whether the defendant is liable by reason of a defect in a highway."
The opinion closes as follows:
“The injury to plaintiff was caused, not by any failure of the city to perform its duty, but, as we have before said, by a momentary negligence of the gateman or draw tender. For this negligence the city is not responsible, and it cannot be indirectly held liable, upon the theory that this negligence created a defect in the street which the city by reasonable diligence might have remedied."
There was no discussion of the question whose servant the draw tender or gateman was, nor in what capacity, governmental or corporate, the city acted in the management and control of the bridge.
Corning v. Saginaw involved a state of facts similar to those in French v. Boston, and, like the latter case, cannot be reconciled with Weisenberg v. Winneconne.
Daly, Adm', v. New Haven is in its facts much like the case at bar, and the court held the city not liable. In the course of the opinion it is said:
“The duty to provide and maintain this bridge as a part of a public highway over the river, and the duty to build, maintain, and operate a suitable draw in the bridge for the benefit of the public highway up and down the river, are public governmental duties"-citing several Connecticut cases and French v. Boston, Butterfield v. Boston, and McDougall v. City of Salem, 110 Mass. 21.
McDougall v. Salem was an action by one of the crew of a schooner, who received injuries while attempting to pass through a draw, by reason of the insufficiency of the draw. The court held that by the action of the county commissioners, under a certain statute, the bridge became a part of the highway, that the statute only required the city to keep the bridge safe for travelers on the highway, that the plaintiff was not such a traveler, and there could be no recovery. This case, like French v. Boston and Corning v. Saginaw, cannot be reconciled with Weisenberg v. Winneconne. So far as the Connecticut cases cited in Daly v. New Haven are concerned, it may be observed that the United States District Court for the District of Connecticut, in Greenwood v. Westport, 60 Fed. 560, after an exhaustive review of the decisions of that state and elsewhere, held, in a case which in its facts was like the case of Weisenberg v. Winneconne, that "the operating of a draw in a drawbridge was a mere private corporate duty.”
In our opinion the duty to maintain, support, and attend the Grand Avenue Bridge in Milwaukee is not a governmental, but a corporate, duty, that the negligence of the bridge tender is the negligence of the city, and that the doctrine of respondeat superior applies.
GROSSCUP, Circuit Judge (concurring). I assume that in Wisconsin, following the New England group of states holding the same way, neither town, village nor city is liable for the negligence of its officers having in charge the “maintenance and repair of highways”; that such officers, though appointed by the town, village or city, as “to the maintenance and repair of highways,” are the officers and agents, not of the municipality, but of the state; the municipality to that extent, performing a state governmental function.
I assume also that in determining whether this rule is applicable to the facts of any case arising in Wisconsin, not before adjudicated by the Wisconsin courts, the general trend of the Wisconsin casesthe way in which the Supreme Court of Wisconsin in cases of this kind has been facing—must be kept in mind and followed.
It is admitted, however, that the precise case now being considered has never been decided by the Supreme Court of Wisconsin. The question it presents, therefore, is an open one, even according to the Wisconsin law, and must be dealt with as such by this court in its effort to find out what the law on the subject is.
That question is this: The city being under duty to operate a bascule bridge across a stream made navigable by the laws of the United States, and having appointed a bridge tender to attend to such operation—all needful guards, railings and other means of warning travelers having been provided also, to prevent a traveler from going upon the bascule when it is in operation—is the city
liable to such traveler, who, through the negligence of the bridge tender has been led to go upon the bascule when in operation, and has received injuries therefrom? The question may, according to my view, be answered in the following propositions :
1. The operation of a draw or bascule is in no sense, in the contemplation of the Wisconsin law, within the meaning of what is meant by the phrase “the maintenance and repair of highways.” The bridge at rest may be a part of the highway, so that for injuries through defects, say in a plank, there might be no recovery from the city. But the process of turning this bridge around, or lifting it up, so that the highway is for the time interrupted, and the process of restoring the highway from this interruption, is a special service arising out of the discharge of a special duty, not contained or contemplated in the ordinary duty of maintaining and repairing highways. To hold otherwise, would be to extend unwarrantably, it seems to me, that plain and well established subdivision of the law.
2. Where in the performance of such a special service, an agent is employed by the city, the city must respond for the negligence of the agent to him who, being at the time and place in the exercise of his own rights, and without contributory negligence, has received injuries as the result of such negligence, even though the injured person be a traveler on the highway.
3. The liability of the city in this respect does not grow out of special statute. It is a liability that grows out of the general law in Wisconsin, and is based upon the general principle that where it is the special duty of a city, as a city, to do a given thing, and it is engaged in the attempted performance of that duty through an agent, the city must respond for the negligence of the agent.
These propositions, it seems to me, are inherent in the principles on which the Wisconsin cases, approximating this case, have been decided. In Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565, the city was held liable for the negligence of its agent in the construction of the walls of a cistern whereby the plaintiff was injured, the court holding that it being the special duty of the city, as a city, to construct cisterns for fire purposes, and the city being engaged in the attempted performance of this duty through its own private agencies, the case was the common one of special employment for the performance of special service, for and on behalf of the city. The mere fact that the cistern was for the use of the fire department, was held not to make its construction a performance by the city of its duty under the governmental power to maintain a fire department; nor the fact that without such cisterns the governmental fire department would be practically useless; nor would the fact, I take it, that men otherwise connected with the fire department may have been employed to do this special service, have made the case a different one. The governmental function of the city, as to its fire department, is to put out fires. With the putting out of the fires, and the ordinary care-taking of the means through which that work is done, the governmental function begins and ends. What goes before, and what follows, though related to the putting out of
fires, and essential to the fire equipment, is to be regarded as a special service in whose performance the city, like any one else, is to be held responsible for the negligence of its agents. Note this then, the point of the case cited: That though the city be not liable for the way its officers perform the duty commonly known as fire protection, that exemption from liability begins and ends just where the duty of the fire department begins and ends—is not to be extended to any other performance of duty by the city, even though such performance may contribute to the means wherewith it performs its governmental duty. In other words, the Wisconsin court is not extending, as the case cited shows, the exemption of a duty beyond the plain, well defined class of governmental functions upon which the New England doctrine was built up.
In Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871, the city was held for the negligence of the bridge tender in not opening the draw in time to prevent collision with a vessel, whereby a traveler on the river vessel received injuries. Now the bridge was not in that case an obstruction, in law, of the river highway. The bridge was permitted, under the law; and was constructed in accordance with the law giving such permission. The fault of the city on which recovery was based, was not that the bridge, as constructed, was an unlawful obstruction, but that the draw, as negligently operated, made it for the time being, an obstruction resulting in injury to the traveler. The law contemplated that the bridge should be there just as it was, a part of the highway for travelers on land. The law contemplated also that the river should be there, just as it was, a highway for travelers on the river. But to the end that these two highways should be placed with reference to each other—so interlockedthat when one was in use, the other would not be open for use, the draw was interpolated, with a bridge tender to operate it; and because the operation of the draw was no part of the maintenance and repair of the highway, but was a special service that alternately opened and closed two intersecting highways, the rule applied to lack of “maintenance and repair” cases was not applied. Of course the decision related, in terms, only to the traveler by river. But I can see no reason why it should not apply, in principle, to the traveler on land as well—the point of the case being that the bridge tender was not an officer of the city, within the governmental duty of the city, to maintain and repair the highways, but a special servant to perform this special service, growing out of the intersection of the two highways, and the duty of the city, as a city, to so interlock them that both could be operated with safety.
Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176, goes nearly to the extent of governing the case under consideration. Logically it discloses, I think, the principle that governs this case. The injury in that case was to a traveler on the land highway, falling into an open draw. The negligence for which the city was made responsible, was in not providing a guard, bar, or light, whereby the traveler would have been warned of the danger that an open draw presents. Now as to this traveler on the land highway, had it been the city's.
duty, as a mere governmental division of the state performing a governmental function, to provide a bar, guard or light, that the traveler might not fall into the draw, the court would have been compelled to place the case among other cases relating to maintenance and repair of the highways, and have thus exempted the city from liability. But the court did not take that view. It held the city liable. And it could only have done this upon the principle that whatever might have been the ruling had the break in the continuity of the street been caused, say by some casual flood cutting through the highway, (though I am aware of no such case), the duty of safe guarding an open draw across the river, is a thing so different that, logically, it takes the draw bridge and its operation out of the rules that govern liability for lack of maintenance and repair of highways. And this being thus decided, the whole doctrine of immunity of cities under the Wisconsin law, from the consequences of negligence connected with the maintenance and repair of streets, stops short of the operation of a draw across a navigable stream, and the warning to be given travelers in that connection.
Indeed, I cannot discern upon what reasoning the law could hold the city liable to a traveler upon the river, under the doctrine of respondeat superior, and not hold it liable for the same character of negligence to a traveler on the land; or how it could hold the city liable to a traveler on land, for negligence in not providing a giiard or warning lights, and not hold it liable, under the doctrine of respondeat superior, for the negligence of its agent in not using such guard or lights, after they were provided. An affirmance of the judgment below, it seems to me, would throw the whole law as already declared by the Supreme Court of Wisconsin, into disorder.
BAKER, Circuit Judge (dissenting). In addition to the averments recited in the statement of the case, the plaintiff alleged that the defendant “had not supplied or put in use any guards or warnings at the said approach to said bridge, but had left the approach from said Grand avenue to the bridge above described unguarded, unsafe and dangerous for pedestrians who desired to cross,” and that on October 15, 1903, he served upon the city clerk a notice of the time, place and nature of his injury. At the argument plaintiff's counsel admitted that, inasmuch as the notice was not served within the time prescribed in the statute, no cause of action within section 1339, Rev. St. Wis., was stated in the complaint. Did the Circuit Court err in holding that, by the law of Wisconsin, no liability independent of the statute was shown?
The states are divided into two groups with antipodal views of the nature of the duty and resulting liability of a city in respect to the care of highways and bridges within its limits. The "general group" holds that the highways and bridges are the city's, and that the city is liable for negligence the same as a private corporation. This conclusion is sometimes based on the ground that the state has given the control to the city for its private advantage in "improving the territory within its limits” and in "adapting the territory to the pur