Higgins v. City of Superior

SiebegkeR, J. The substance of these allegations is that tbe plaintiff was injured through tbe negligence of a fireman of tbe city in charge of and driving tbe team on tbe streets of tbe city; that bis negligent conduct, which was well known to tbe city officials when they selected bim for such position, was the result of bis intemperate habits and reckless disposition; and that, though fully apprised of bis negligent and reckless conduct after having placed bim in charge of these public duties, they neglected to remove bim. It is averred that this action of tbe city officials in so employing and retaining this driver in tbe city’s service renders tbe city liable for bis wrongful conduct while be was performing such public services for tbe city, upon tbe ground that such negligent and reckless driving of tbe city’s team and fire apparatus upon tbe public streets constituted a dangerous obstruction in tbe streets, rendering tbe city liable for any injury caused thereby. Tbe gravamen of tbe complaint is tbe negligence of tbe driver of tbe team and tbe omission of tbe city authorities to fully discharge their public duty by selecting and retaining bim in tbe employ of tbe city with knowledge of bis negligent conduct and intemperate habits. Unquestionably tbe city officers were remiss in their [267] official duties if they selected and retained an incompetent and reckless driver to take charge of a team connected with the city’s fire department. Such neglect of duty, however, constitutes no legal ground for holding the city liable for the damages resulting therefrom. The only other ground upon which a liability against the city is claimed is the alleged negligence of the driver as a city employee in the management of the team and wagon of the fire department of the city. The rule of the city’s non-liability for any negligence of city officers and employees in the conduct of this branch of the city’s affairs is well established and clearly defined in the decisions of our state. The early case of Hayes v. Oshkosh, 33 Wis. 314, declared the law on the subject, and it has been followed in numerous subsequent cases. It is there held that when a city is “engaged in the performance of a public service, . . . which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community,” no action will lie against it for any negligence or misconduct of its officers and agents in the discharge of such official duties, and that the members of the fire department are within this class of city employees. Manske v. Milwaukee, 123 Wis. 172, 101 N. W. 377; Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65; Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342; Kempster v. Milwaukee, 103 Wis. 421, 79 N. W. 411. It is said by the appellant that the facts alleged show that the conduct of the driver of the team of the fire department was in legal effect such as to cause an obstruction of the streets of the city, imperiling people lawfully using them, and that this was known to and permitted by the city officers, and that this renders the city liable for a violation of the city’s duty to keep the streets clear from obstructions and in a safe condition for travel. This argument loses sight of the fact that the acts which the city engaged this driver [268] ta perform were not unlawful or inherently dangerous, and that the dangers complained of resulted from the negligent manner in which such driver performed the lawful functions of the city. This makes the wrongful acts complained of the acts of the city’s servant in the management of the fire department and brings them within the principle established by the foregoing and other cases. Saunders v. Fort Madison, 111 Iowa, 102, 82 N. W. 428; Gillespie v. Lincoln, 35 Neb. 34, 52 N. W. 811; 5 Thomp. Comm. on Neg. § 5785 et seq. By the Court. — The order appealed from is affirmed.