Gensch v. City of Milwaukee , 179 Wis. 95 ( 1922 )

Eschweiler, J.

We are compelled to come to the conclusion that there can be no recovery against the defendant in this action upon the principle so long established in this state that in the performance of a governmental function a city is not liable for the damages caused by the negligence of its servants engaged in that performance, as illustrated and declared by such cases as Nemet v. Kenosha, 169 Wis. 3 79, 382, 172 N. W. 711; Juul v. School Disi. 168 Wis. Ill, 112, 169 N. W. 309; Bernstein v. Milwaukee, 158 Wis. 576, 578, 149 N. W. 382; Bruhnke v. LaCrosse, 155 Wis: 485, 488, 144 N. W. 1100; Higgins v. Superior, 134 Wis. 264, 267, 114 N. W. 490.

The negligent act found by the jury to be the proximate cause of this unfortunate accident was one being performed by the employees of the defendant city as a proper part of their services in maintaining and operating the free public bathing beach as a portion of one of the city’s public parks. The mere circumstance that this particular box was placed in the rear of the bathing pavilion and in a portion of the park devoted to the general purposes of such park rather than in front of the bathing pavilion and between that and the beach, a portion more particularly set aside for the use of the bathers, cannot take this particular case without the well established rule. The negligence, if any, was that of the employees of the city in the doing of city work and upon property kept and maintained by the city for public park purposes.

It follows that the defendant’s motion for judgment in its favor should have been granted.

By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment dismissing the .complaint.