Ramirez v. City of Cheyenne

*71 Kimball, Justice. This is an action for damages for the death of plaintiff’s intestate, a boy between 7 and 8 years of age, who was killed by the falling of á swing maintained by the defendant in a public park. The defendant, the City of Cheyenne, is a Municipal Corporation existing under special charter and operating under the commission form of government. The trial was terminated at the close of plaintiff’s case in chief by a directed verdict for the defendant, and the plaintiff brings the case here by proceeding in error. . The petition charges that the child’s death was caused by the negligence of the defendant in maintaining the swing in a defective and dangerous condition. The evidence showed that the swing was supported by four iron legs. Pour corresponding iron pipes were set in cement in the ground. These pipes were meant to serve as sockets into which the supporting legs of the swing could be fitted and fastened. As originally set up and maintained the swing was securely anchored to the ground in this manner, and there was then no danger of its falling. Some time before the accident the pipes to which the legs of the swing should have been fastened became broken or worn and unfit for use for the purpose for which they were *72 meant. There was then no way to anchor the swing to the ground. For a month or more before the accident the swing in this condition was permitted to be in the park and to be used by children of various ages. The jury might have found from the evidence that the swing in that condition was a dangerous machine likely to cause injury to children who used it, and that the defendant knew of the condition and danger. The swing had fallen at least once and would have fallen at other times had it not been held up or caught by older persons who happened to be present. The jury,might have found also that the defective condition of the swing was the proximate cause of the death of the fchild. It is claimed that the child was guilty of contributory negligence, and that the directed verdict may be upheld on that ground. The facts which the defendant claims are undisputed and on which it relies to establish negligence on the part of the child are substantially these: The swing was intended for use by babies or children of tender years, and had on it a sign “for babies only.” At the time of the accident, the child was swinging vigorously and standing in the seat of the swing. He was a normal, healthy, intelligent child, and could have seen, as anyone else could, that the legs of the swing were not fastened to the ground. The law requires a child to exercise for his own protection that care that may fairly and reasonably be expected from children of his age. In cases of children of the age of the deceased the question whether that care has been exercised is usually a question of fact to be left to the jury. Shearman & Redfield on Neg. (6th ed.) Sec. 73a. ¥e believe the question should have been left to the jury in this case. If we assume that the sign “for babies only” meant that the swing should not be used by children of the age of the deceased, it is hardly to be contended that it necessarily gave notice of the defective condition of the *73 swing or of the danger attending its use. And if we assume that the child should have noticed that the legs of the swing were not fastened to the ground, we do not think it follows as a necessary inference that a child of his age should have appreciated the danger of using the swing in the manner he did use it. The very presence of the swing in a public park or playground would naturally lead even a much older person to believe that it was fit for use. Oases are cited in which it has been held as a matter of law that the injured child was guilty of contributory negligence, but we think none of them would support the directed.verdict on that ground in this case. In most of them the child suddenly put himself in a dangerous place where there was no reason to expect him, and too late for the danger to be averted. In all of them it appeared from undisputed facts that the child acted in entire disregard of that degree of prudence that was reasonably to be expected from one of his age. We cannot say that this was such a case. While the record does not disclose it, it is reasonably certain that the trial judge did not direct the verdict on the ground of contributory negligence, but in approval of the contention that the defendant was not liable for its negligence. This presents the important question in the case. There is an oft-repeated general principle that a municipal corporation has powers of two kinds, first, those that are governmental or public, in the performance of which there is no implied common law liability for negligence, and, second, those that are corporate or private for the negligent performance of which the city is subject to the same liability as individuals or business corporations. This division of the powers of municipal corporations for the purpose of determining their tort liability is recognized by most of the courts of this country, but has never received more than incidental notice by this court. *74 The cases on which it is supposed to he based underwent a thorough examination by Mr. Chief Justice Gray, in 1877, in the case of Hill v. Boston, 122 Mass. 344, where it was said at page 369: (23 Am. Rep. 332) : “The result of the English authorities is, that when a duty is imposed upon a municipal corporation for the benefit of the public, without any consideration or emolument received by the corporation, it is only where the duty is a new one, and is such as is ordinarily performed by trading corporations, that an intention to give a private action for a neglect in its performance is to be presumed.” Of this opinion Judge Dillon in his work on Municipal Corporations (5th ed., Sec. 1643) remarks: “That this general view of the restricted liability of municipal corporations is sound there can be little doubt.” It seems, however, in spite of the high authority of Hill v. Boston, and the many other casesin this country to the same effect, that the exemption of municipal corporations from liability for affirmative acts of negligence finds little or no support in English precedents. The cases in that country, following Russell v. Men of Devon, 2 T. R. 667, make a rather unscientific and bothersome distinction between nonfeasance and misfeasance, and in the absence of a statute imposing liability, public bodies performing public acts from which they derive no revenue are exempt from liability in cases of nonfeasance only. Cowley v. Newmarket Local Board, (1892) A. C. 345; Shoreditch v. Bull, 90 L. T. (N. S.) 210; Maguire v. Liverpool Corp. (1905) 1 K. B. 767; McClelland v. Manchester Corp. (1912) 1 K. B. 118; 14 Juridical Rev. 158; 30 Law Q. Rev. 276, 415. It is said in Pollock on Torts (12th ed., pp. 59-60), on authority of Mersey Docks Trustees v. Gibbs, L. R. 1 H.L. 93, that: *75 “Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in.their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners; and this whether they derive any profit from the undertaking or not.1 ’ It has been assumed in England, however, that a municipal corporation ivould not be liable for misfeasance of its police officers, and this has been supposed to be so because the police perform public duties having no peculiar local characteristics. Wills, J., in Stanbury v. Exeter Corp., (1905) 2 K. B. 838, 842. This is something like the American doctrine. The rule distinguishing between governmental and private powers for the purpose of determining the tort liability of municipal corporations may be of doubtful origin, and hard to justify on any of the principles of the law of agency and torts. The grounds for the distinction have been seriously challenged in recent years. The Supreme Court of the United States refused to apply it in a case under maritime law. Workman v. New York, 179 U. S. 552; 21 S. Ct. 212, 45 L. ed. 314. Relying largely on what was said in the majority opinion in Workman v. New York, the Supreme Court of Ohio in Fowler v. Cleveland, 100 Oh. St. 158, 126 N. E. 72; 9 A. L. R. 131, held a city liable for an injury caused by the negligent operation of a fire truck although it is held almost without dissent, and had been held in Ohio, that the maintenance of a fire department is a governmental matter. Since the decision of Fowler v. Cleveland there has been in legal periodicals a flood of adverse criticism of the rule of immunity. 34 Harv. L. R. 66; 34 Yale L. J. 1, 129, 229; 4 Ill. L. Q. 28; 33 Mich. L. R. 325; 20 Columbia L. R. 772. While these criticisms may have raised a serious doubt both as to the wisdom and the foundations of the rule, the doubt has not *76 found much expression in judicial decisions. After the decision of Fowler v. Cleveland, the case of Workman v. New York was expressly limited in its application to cases under maritime law, and the distinction between .public and private powers of the District of Columbia recognized. Harris v. District of Columbia, 256 U. S. 650, 41 S. Ct. 610. Later, Fowler v. Cleveland was overruled. Aldrich v. Youngstown, 106 Oh. St. 342, 140 N. E. 164; 27 A. L. R. 1497. While we are not unmindul of the force of the criticisms of this rule of immunity, we think the rule has become so well fixed as a part of the law of municipal corporations of this country that it is not to be disregarded by the courts until the legislature declares a different policy. A practical objection to the rule is the astonishing lack of uniformity in the decisions of cases in which it has been applied. Powers held to be governmental or public in one jurisdiction are held to be corporate or private in another, and it has often been said that it is impossible to state a rule sufficiently exact to be of much practical value in deciding when a power is public and when private. Dillon, supra, Sec. 1625; Johnson v. Chicago, 258 Ill. 494, 101 N. E. 960; Lloyd v. New York, 5 N. Y. 369, 55 Am. Dec. 347. The conflict in the decisions is no where more pronounced than in cases of negligence in the maintenance of public parks and playgrounds which are generally conceded to stand on the same footing. These eases are collected in a note to Emmons v. Virginia, 152 Minn. 295, 188 N. W. 561, as reported in 29 A. L. R. 860, where it is said that a majority of the cases support the view that a municipality in maintaining a public park is engaged in a governmental activity. There are, however, so many courts holding to the minority view that the mere question of the number of decisions 'one way or the other can have but little weight. From an examination of the more recent cases we find Utah holding to the rule of immunity and *77 West Virginia to that of liability. Alder v. Salt Lake City, 64 Utah 568, 231 Pac. 1102; Warden v. City of Grafton, (W. Va.) 128 S. W. 375. It would almost seem that the rule of immunity has been given or refused application to attain the result that has appeared to individual judges to be most convenient. However unsatisfactory this may be to those who wish for consistency in the law, it is recognized as the method by which many principles of the common law have been established. Holmes, Common Law, p. 1. That the law as applied to a particular situation produces different results in different jurisdictions is, to say the least, unsatisfactory. We cannot but hope that the legislature may turn its attention to the subject of municipal liability for tort and declare a policy for future guidance. If, in declaring the rule to control this case, we felt free to be guided solely by our intuitions of public policy, we might say, without more ado, that the city should or should not be liable under the facts that might have been found by the jury. We have said, however, that we cannot disregard the established rule that the courts of this country try to follow in determining the tort liability of municipal corporations. If the city in maintaining the playground device had been engaged in an activity which generally, or by the clear weight of authority, has been classed either as governmental or private, we probably would be content to decide the case without looking for other grounds for the decision. In classifying the activity here involved and determining a policy of liability or immunity, we think, in the absence of any generally accepted guide, we should take note of some exceptions to the rule of immunity, and give consideration to some other matters that should influence public policy. *78 The most pronounced exception is in cases of failure to keep highways in repair. The maintenance of highways would seem to be a governmental or public function, and is usually so recognized, but most of the courts of this country, on one ground or another, have held cities liable for negligence in failing to keep their streets in a safe condition for travel. While such liability is sometimes declared by statute, it is often imposed in the absence of statute, and in the latter class of cases the right to damages is usually sustained as an exception to the general rule that exempts the city from liability for negligence in the performance of governmental or public duties. In cases of parks and playgrounds, some of the courts holding the city liable do so for the same reasons that apply to cases of highways. Other courts refuse to extend the exception as to streets to cases of parks and playgrounds. In this state we have had no case involving the liability of a city for defects in highways. Kent v. Cheyenne, 2 Wyo. 6, decided without opinion, involved the question of the city’s liability for permitting a nuisance in a street. It was held that there was no liability. But the probable ground for that decision was the exemption of the city from liability for failure to enforce an ordinance, or for failure to abaté a nuisance which it had not created. It is often said that a city, even though acting in a governmental capacity, cannot escape liability for creating or maintaining a nuisance. Wood on Nuisance (2nd ed.) Sec. 748; Hughes v. City of Fond du Lac, 73 Wis. 380; 41 N. W. 407; City of Winona v. Botzet, 169 Fed. 321, 332; 94 C. C. A. 563; 23 L. R. A. (N. S.) 204; Miles v. Worcester, 154 Mass. 511; 28 N. E. 676; 13 L. R. A. 841; Chattanooga v. Dowling, 101 Tenn. 342, 47 S. W. 700. This should not, perhaps, be classed as an exception to the rule exempting a city from- liability for negligence, for common law negligence does not enter into cases of true *79 nuisance. The liability of municipal corporations for damages for nuisance seems generally to be recognized where property has been injured, but not so often where the damage was to the person. Yet the maintenance of a dangerous thing in a public place has been referred to as a nuisance. Tarry v. Ashton, 1 Q. B. Div. 314. In Maxwell v. City of Miami (Fla.), 100 So. 147; 87 Fla. 107; 33 A. L. R. 682, the reckless operation of fire trucks on the public streets was called a nuisance. Machines that allure children into danger have often been termed “attractive nuisances.” It has been said that “nuisance” is a good word to beg a question with. Its use in relation to acts that give rise to private actions for damages might well be confined to infringements of rights appurtenant to real property. 1 Street, Foundations of Legal Liability, pp. 211, 230. In the case at bar the plaintiff did not sue on the theory that the swing in its defective condition was a nuisance, and it is unnecessary for us to say whether or not it might have been so classified. We will say in passing, however, that it is not unlikely that if a city should persist in maintaining a playground device in a defective condition in a public place where it would be a danger to children who used it, some law might be found to compel the city to remove or repair it. In New Jersey it is held that the exemption of municipal corporations from liability for negligence in performance of public duties does not extend to cases of active wrongdoing chargeable to the corporation. Olesiewicz v. Camden (N. J. L.) 126 Atl. 317; Kehoe v. Rutherford, 74 N. J. L. 659; 65 A. 1046; 122 Am. St. Rep. 411; Doran v. Asbury Park, 91 N. J. L. 651, 104 S. 130. In Hart v. Freeholders of Union, 57 N. J. L. 90, 29 A. 490, it is said that there is no reason arising out of public policy why a municipal corporation should be shielded from liability when a private injury arises from wrongful acts as distinguished from mere negligence. We fear that the term *80 ‘ ‘ active wrong-doing ” is of doubtful meaning. The cases show, however, that the courts of New Jersey refuse to grant absolute immunity to municipal corporations in the exercise of governmental powers. We have already referred to the so-called “turntable” or “attractive nuisance” cases. Under the doctrine of those cases the alluring machine, or other attraction,- is considered an invitation to the child who then has the rights of an invitee, or, if not that, the allured child is considered a licensee and the dangerous machine a trap. Except for this doctrine the child in such cases would be a trespasser. There is, of course, no contention that the child in the case at bar was a trespasser, and there is no occasion to invoke the doctrine of the attractive nuisance cases to fix his status. We call attention to the doctrine as illustrating the policy of the law to find a way to protect children from artificial perils. When the policy of distinguishing between governmental and private functions of municipal corporations took root in the law the activities of public bodies were much more limited than they have since become. The leading case of Russell v. Men of Devon, 2 T. R. 667, involved a defective bridge, and it was held that the unincorporated inhabitants of the county could not be sued for damages caused by their failure to keep, the bridge in repair. Other cases arose in which it appeared that the public body was obtaining revenue from the exercise of the power, or acting as a substitute for the ordinary business or trading corporation, and in such cases liability for negligence was imposed. Scott v. Manchester, 2 H. & N. 204; Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93. It has since been assumed that all duties of municipal. corporations are performed either as a substitute for the state and for the benefit of the public in general, or as a substitute for business corporations and for the benefit of the municipality. In the performance of the first class of duties the *81 city is immune as the state would be, and in the other it is liable as a business corporation would be. Lately there has come to be recognized a kind of service to which there is attached neither the immunity of the state nor the liability of business corporations. This is the service rendered by bodies administering public charities. To such bodies the law as established in many jurisdictions, including ours, grants a partial exemption from tort liability. The exemption, we understand, applies where the charity is sought to be charged with the negligence of its employees, but does not affect its liability for failure to perform its personal, non-delegable duties, such as the duty of using care in selecting its employees, and in keeping its premises safe for invitees. Williams v. Union Pacific R. Co., 20 Wyo. 392; 124 Pac. 505; Bishop Randall Hospital v. Hartley, 24 Wyo. 408, 415; 160 Pac. 385; Union Pacific R. Co. v. Artist, 60 Fed. 365; 23 L. R. A. 581; Hewett v. Association, 73 N. H. 556, 565; 64 A. 190; 7 L. R. A. (N. S.) 496; Hearns v. Waterbury Hospital, 66 Conn. 98; 33 A. 595; 31 L. R. A. 224; McInerney v. St. Lukes Hospital, 122 Minn. 10; 141 N. W. 837; Bruce v. Central M. E. Church, 147 Mich. 230; 110 N. W. 951; Hordern v. Salvation Army, 199 N. Y. 233; 92 N. E. 626; 32 L. R. A. (N. S.) 62. A charitable institution is also liable for damages caused by a nuisance. Love v. Nashville etc. Inst., 146 Tenn. 550; 243 S. W. 304; 23 A. L. R. 887. If the service that a municipal corporation undertakes to perform for the benefit of the children of the community partakes of the nature of services that would ordinarily be performed by charitable or eleemosynary institutions, and is such as would not ordinarily be performed by the state or business corporations, we think public policy requires for the protection of the children of the state that the municipality be held to no less accountability for its own negligence than would be the case if the *82 service were performed by a charity. That policy would seem to be consistent with the rule that grants a larger immunity when the city is considered as acting as a substitute for the state and imposes a larger liability when it is considered as acting as a substitute for a business corporation. The analogy between an institution conducting a public charity and a municipal corporation when engaged in a similar activity has been noted elsewhere. Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 A. 553, 1 L. R. A. 417; Scibilia v. Philadelphia, 279 (Pa.) 549, 124 Atl. 273, 32 A. L. R. 981. In the case last cited it is said that “a municipality is entitled to the benefit of the same rule of exemption that would apply to work of a similar kind when rendered by a public charity. In other words, it is the character of the service involved which must serve as the criterion to govern controversies such as the one at bar. ’ ’ The maintenance of free municipal playgrounds is a comparatively new municipal activity, and one in which neither the states nor business corporations are likely to engage. Such playgrounds might be, and probably are in some instances, maintained by benevolent persons or by corporations formed for the purpose. We think, therefore, that the city in maintaining thé playground device must be considered as acting as a substitute for a charitable or benevolent body performing a public service. In the absence of any policy of immunity declared by the legislature we cannot hold that it has intended to create irresponsible agencies for such a purpose. Cities inviting children to playgrounds where it maintains devices for their use in play must assume at least those duties and liabilities that would be assumed by a charity doing the same thing. Though it be not liable under the doctrine respondeat superior for the negligence of its servants, it is liable for negligence in the performance of its non-delegable duties, among which is the duty to use reason *83 able eare to make tbe place safe for children who are there by invitation. The controlling principle is stated in Cooley on Torts, p. 605, thus: (Where one) “expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to see that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. ’ ’ We think the child in this case was an invitee under the foregoing principle. See Davis v. Central Congregational Soc., 129 Mass. 367, 37 Am. Rep. 368. This duty to invitees goes beyond the common doctrine of responsibility for servants and is nondelegable. Pollock on Torts (12th ed.) p. 516; Herman v. Board of Education, 234 N. Y. 196; 137 N. E. 24; 24 A. L. R. 1065; Silverton v. Marriott, 61 L. T. (N. S.) 61; 6 Labatt, Master & Serv. Sec. 2500. The rule as to non-delegable duties applies to corporations, who can act only by its agents, as well as to natural persons. 4 Labatt, supra, Sec. 1485. Under the foregoing principles the jury would have been warranted in finding that the death of the child was caused by actionable negligence on the part of the defendant without contributory negligence on the part of the child, and a verdict should not have been directed. The judgment will be reversed and the case remanded for. a new trial. Potteb, Ch. J., and Blume, J., concur.