I am unable to concur with my associates in the foregoing opinion. It is alleged in the complaint, so far as need be considered here, and admitted by the demurrer of the respondent, as follows:
"5. That said defendant negligently adopted a dangerous plan for physical exercise and use of pupils, such as plaintiff, upon the school grounds, which consisted in adopting as a part of said program an extremely dangerous appliance and instrumentality, namely, a swing approximately fifteen feet in height, to be used by plaintiff and other pupils at said school, and negligently put said dangerous plan in operation and installed upon the playgrounds, used by the pupils of said school, said dangerous instrumentality and swing for the use of pupils of a tender age such as this plaintiff, which said swing was dangerous by reason of its extreme height; . . . that several months prior to the injury to plaintiff, as hereinafter set forth, said defendant had been notified by the principal in charge of said school, who had had a long experience in matters of this character, that said swing was a dangerous instrumentality for the use of pupils of tender age, such as plaintiff, and should be removed from said playgrounds, and that notwithstanding such knowledge, notice and warning as to the dangerous character of said swing when used by young pupils of the first and second grades, and such as plaintiff, and the fact that same was obviously dangerous for use by said children, the said defendant failed, neglected and refused to take any precautions whatever for the safety of said pupils, including this plaintiff, and continued to allow said swing to remain on said school playgrounds for the use of said young *Page 293 pupils, including this plaintiff, . . . That said defendant was negligent and failed to exercise any judgment whatever in adopting the plan for physical exercise which provided for the use by said plaintiff of such a high swing as in this paragraph set forth, because said plan was so palpably and obviously dangerous and defective as to impress upon the mind of any reasonably prudent person that it was dangerous and unsafe, and that injury to a pupil of said school of the age of plaintiff by the use thereof would necessarily result.
"6. That a reasonably safe plan for a swing to be adopted and placed in operation on said playground for plaintiff and children of like age, was and would be a low swing not to exceed eight feet in height, and this is the height of swing that was and is usually and customarily adopted and used on playfields in the territory known as the Inland Empire, of which district defendant is a part, where children of the age of plaintiff were and are allowed to play on a swing, all of which facts were within the knowledge of said defendant; . . ."
The appellant contends that the complaint states a cause of action independently of Rem. Rev. Stat., § 951 [P.C. § 8394], quoted and discussed later on in this opinion, his theory being that, even though it may be said that, in adopting the plan relative to athletic apparatus and in the selection of the swing as a part thereof, the respondent performed a governmental function and would, therefore, be immune from liability, an exception to the rule exists to the effect that, if the plan adopted creates a condition so manifestly dangerous that no reasonably prudent man would sanction its existence, the respondent would be held liable for resulting injuries.
While the cases cited by appellant relate to streets, sidewalks, and highways, they bear sufficient analogy to the case at bar so that it can be said that the rule at law set forth therein applies here. They declare *Page 294 the rule to be that, even though, in the making and adoption of a plan, the public corporation is performing a governmental function, it is not responsible for errors in judgment or in the exercise of its discretion; and that, if the plan is one that prudent men might approve or where it would be doubtful upon the facts whether the plan was dangerous or safe, and different minds might entertain different opinions with respect thereto, there should be no liability; but, if the plan adopted is one palpably unsafe and dangerous, there is a liability. 38 Am. Jur. 328, § 628; Nashville v. Brown, 157 S.W.2d (Tenn.App.), 612;Lewis v. Tulsa, 179 Okla. 176, 64 P.2d 675; Providence v.Hunter, 231 Ky. 72, 21 S.W.2d 135; LaDue v. LebanonTownship, 222 Mich. 301, 192 N.W. 636; Giaconi v. Astoria,60 Ore. 12, 24, 113 P. 855, (on rehearing) 118 P. 180, 37 L.R.A. (N.S.) 1150.
In the two latter cases, statutes were considered, the Oregon statute being similar to Rem. Rev. Stat., § 951. However persuasive the argument of appellant and the foregoing citations may be, I think the question presented must be decided upon the basis of our statutes and decisions. The real question to be decided, as I construe the complaint, is whether a school district owes a legal duty to pupils attending school to exercise reasonable care in the adoption of the general scheme or plan of the type of the athletic apparatus or appliances to be used and in the selection thereof; and, if so, whether, by virtue of chapter 92, Laws of 1917, p. 332 (Rem. Rev. Stat., § 4706 [P.C. § 4897]), it is absolved from liability if it fails to do so and a pupil using the same is injured as a result thereof. Section 4706 is as follows:
"No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or *Page 295 employees, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district."
It is a general rule that a school district, which is an involuntary corporation organized solely for the public benefit and as a means of carrying out the policy of the state to educate its citizens, is not liable under the doctrine of respondeatsuperior for the negligent acts or omissions of its officers or agents, as, in so doing, it is performing a governmental function; and the operation and maintenance of athletic apparatus and appliances for the physical development of pupils attending its school is a part of its system of education. Redfield v.School Dist. No. 3, 48 Wash. 85, 92 P. 770; Howard v. TacomaSchool Dist. No. 10, 88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792; Bush v. Quinault School Dist. No. 97, 1 Wash. 2d 28, 95 P.2d 33; Casper v. Longview School Dist. No. 122,5 Wash. 2d 403, 105 P.2d 503. The rule was changed by statute by the enactment of Rem. Rev. Stat., § 951, which reads as follows:
"An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section [§ 950, which includes a school district], either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."
In a series of cases, this court has construed and applied § 4706 to various kinds of athletic apparatus and appliances and manual training equipment, as well as alleged negligence with reference to supervision of children while playing on or using the *Page 296 same, which cases are cited in the majority opinion and inCasper v. Longview School Dist. No. 122, supra. This court has also held that the statute does not apply to a steel tank left upon a school playground (Stovall v. Toppenish School Dist. No.49, 110 Wash. 97, 188 P. 12, 9 A.L.R. 908); to injuries sustained by a student while playing football, though the statute is not specifically referred to in the opinion (Morris v. UnionHigh School Dist. A, 160 Wash. 121, 294 P. 998); and where injuries were sustained by a boy when a tier of bleacher seats in an athletic field collapsed (Juntila v. Everett School Dist. No.24, 178 Wash. 637, 35 P.2d 78). In these cases, it was held that liability existed because of Rem. Rev. Stat., § 951; and, in one of them, it was pointed out that § 951 was still in force except as limited by § 4706.
An examination of our cases will disclose that in none of them was the precise question now before the court raised or decided. As § 951 is not expressly repealed in whole or in part by § 4706, but only limited thereby, they must be read and construed together. Section 951 creates liability of a school district "for an injury to the rights of the plaintiff arising from some act or omission" of such school district, and this includes all acts or omissions of its officers or agents within the scope of their authority. A school district has the authority to provide athletic apparatus and appliances for the physical development of pupils attending school, and, in so doing and in the operation and maintenance thereof, it is its duty (a) to exercise reasonable and ordinary care in the adoption of the general scheme or plan of the type and character of such instrumentalities and the selection thereof, having due regard for the use to which they are to be put and the age and capacity of the pupils to use them with a reasonable degree of safety to *Page 297 themselves; (b) to exercise reasonable and ordinary care in supervising the pupils while using such instrumentalities, especially in the case of pupils of tender and immature years; and (c) to exercise reasonable and ordinary care in the operation and use of the instrumentalities and to keep them in reasonably good condition and repair.
Section 4706 has absolved school districts from liability for the nonperformance of the two latter duties, but it is quite clear from the terms of the statute itself that the duties and obligations first referred to remain in full force and effect, and it is a violation of these that the appellant complains.
If physical development is a part of education, and we have indicated that it is in Howard v. Tacoma School Dist. No. 10,supra, then it would seem that, in its process, a scheme or plan therefor would have to be devised just the same as a course of study is devised, and in this is involved the selection of the instrumentalities with which to carry out such a scheme or plan, and then follows in orderly sequence the operation and maintenance of such instrumentalities. In the exercise of a power and authority, a duty arises to use reasonable care in its execution so that a beneficiary thereof may not suffer harm. Can it be said that a school district, in its plan of physical development of pupils of immature age, would have the legal right to include therein circular saws, drawshaves, hatchets, and the like? Devices for use on school grounds are not merely for amusement, but are, as designated by § 4706, "athletic apparatus or appliance" clearly indicating instrumentalities for physical development.
It will be noticed from a reading of § 4706 that the nonliability has reference only to the operation or *Page 298 maintenance of the athletic apparatus or appliances referred to in connection with their use, and says nothing about the original plan or selection of the kinds and types of athletic apparatus or appliances to be provided for use of the school children by the school district. If this statute needs interpretation, we may, under well-established principles, look to its history, the law which it limits, and the evils and mischief to be remedied, give to the words used their ordinary and accepted meaning, and to the statute as a whole that meaning which is most consonant with its policy or obvious purpose, and thus ascertain the legislative intent.
Prior to the passage of § 4706, many actions had been brought against school districts for alleged negligent acts and omissions in connection with the operation and maintenance of athletic apparatus and appliances and manual training equipment, and several were pending while the legislation was under consideration. School districts felt that the right to bring and maintain such actions seriously impaired their ability to carry out a program of physical development and manual training; and, with the view of correcting this situation, the law was enacted. But it is clear that the legislature did not intend to absolve a school district from liability for its acts or omissions in connection with its duty to exercise reasonable care in adopting its plan and its selection of athletic apparatus or appliances, because the first bill introduced on the subject at the 1917 legislative session provided for an amendment to § 951 by a provision as follows:
"Provided, however, that no action can be maintained against any school district, when the cause of action is based upon or arises out of any act or acts done or omitted by such school district in its governmental functions." *Page 299
This amendment was adopted by the Senate, but was rejected by the House of Representatives, and § 4706 was passed. If the legislature had intended to absolve completely school districts from all liability whatsoever under all circumstances, it, no doubt, would have approved the bill as first passed by the Senate. It is thus evident that the purpose of the legislature was to absolve school districts from liability only in connection with the use, operation, and maintenance of athletic apparatus and appliances.
In its interpretation of § 4706, this court said in Stovall v.Toppenish School Dist. No. 49, supra, p. 101:
"It seems clear that the purpose of the legislature was to exonerate school districts from liability for an accident which occurs upon any athletic apparatus or appliance or manual training equipment which is used in connection with any park, playground, or field house, owned or maintained by the district." (Italics mine.)
And in Bush v. Quinault School Dist. No. 97, supra, p. 35:
"That statute exempts school districts from liability for any and all accidents which occur upon any athletic apparatus or appliance which is used in connection with any playground owned or maintained by the school district." (Italics mine.)
And in Casper v. Longview School Dist. No. 122, supra, p. 406, in referring to the Stovall case, said:
". . . the court said the effect of the statute was to exonerate school districts from liability only with respect to the maintenance and operation of athletic apparatus or appliances or manual training equipment used in connection with any park, playground, or field house." (Italics mine.)
These cases are referred to and quoted from because it has been suggested that, since the statute has been construed to be "all-embracing," the word *Page 300 "owned" as used therein must be included in the limitation of liability. A reading of the statute in connection with these cases may make it seem doubtful as to whether the word "owned" is used in connection with the instrumentalities themselves or the places where they may be located or used, or both; but, in any event, it would not seem that mere passive ownership would have anything to do with the liability created by § 591 or the limitation created by § 4706, and that both statutes relate to acts or omissions in connection with the use, operation, and maintenance of the athletic apparatus and appliances.
We must bear in mind that the legislature, in enacting § 4706, was placing a limitation upon a liability that had existed since 1869, and had become thoroughly imbedded in our jurisprudence, and, hence, it must have used the words "operated or maintained" carefully and advisedly, and did not intend that the limitation of liability should extend beyond that which these words, as applied to athletic apparatus and appliances, fairly import.
I am of the opinion that the complaint, while alleging some acts or omissions that are not actionable, states a cause of action, and that the judgment should be reversed, with instruction to overrule the demurrer.
May 4, 1943. Petition for rehearing denied. *Page 301