To hold that the establishing and maintenance of a playground has resulted in a public nuisance in any sense of the word seems to go beyond the rules of law bearing upon the subject. There may be negligence in failing to build a high enough fence and thus protect passers-by; but a transitory act of a player does not in and of itself change the character of the game and make the park into a public nuisance. It has in it no element of continuing harmful use. The flight of a single ball over a fence concerning which no complaints have been made, with a single exception, although the grounds have been in use for upward of nine years, falls far short of creating a public nuisance, especially where the only previous damage had been to property in the neighborhood and not of a serious character, whereas the injury in question was an injury to the person of a passing pedestrian. I seriously question whether the jury was justified in finding an unreasonable hazard in the nature of a public nuisance. *Page 443
The state and the city of Milwaukee have by legislation directed the school board to lay out the playground. The board has charge of the grounds and the games. Such laws as this were passed in the public interest with the idea that by providing a suitable and healthful place for citizens to play, benefit might result to those using the playground and also to the citizens of the community by reason of the reduction in rowdyism and crime in the neighborhood, which reduction results from the establishment of such playgrounds.
It is clear that this is a governmental function and therefore that no action can be maintained against the city for negligence in the maintenance of the playground. Were this not true, it seems clear that the present action would have been for the negligence of the city in failing to provide a higher fence. Even if it be concluded that the activity in question does constitute a nuisance, there is still the question of whether, being a governmental function, under the rule ofVirovatz v. Cudahy, 211 Wis. 357, 247 N.W. 341, the city is liable in damages. The majority seek to distinguish this case by saying that although this is a governmental function, the city was not acting in a governmental capacity toward this plaintiff. This is a distinction which seems to me without merit. The conduct of such recreational facilities, as has been stated, was not solely for the benefit of the participants in the game, but was also to promote the general welfare of the community including that of these plaintiffs. It seems to me that if a function is by nature governmental, it is of that nature regardless of who may be affected by it. 6 McQuillin, Mun. Corp. (2d ed.) p. 773, sec. 2795. In this case, however, the plaintiffs are certainly part of the general public to be benefited by this activity.
Such cases as Young v. Juneau County, 192 Wis. 646,212 N.W. 295, hold in effect that the city under certain circumstances may be liable for the creation of a private nuisance. If the majority here were to say that there is similar liability for the creation of a public nuisance, I would have less cause *Page 444 to disagree. This would involve overruling the VirovatzCase, supra, and also Erickson v. West Salem, 205 Wis. 107,236 N.W. 579. To say, however, that this is a governmental function but not as to this plaintiff seems to me a distinction without substance. The very classification of an activity as a governmental function implies an act for the general welfare and is inconsistent with the idea of separating the participants from the general public.
Confining the relation of governor and governed to those inside the playground really puts the case in the field of negligence with users of the playground assuming any risks. For instance, the child in the Erickson Case, supra, in effect assumed the risk by being in the park and the boy in theVirovatz Case, supra, also assumed the risk by swimming in the pond, although in each case the sewer and the pond were called public nuisances. But if they were nuisances, why was this so? They were nuisances because someone using them in just the ways these children did might be hurt. In the case at bar the nuisance charged is maintaining a bail field with too low a fence. This is called a nuisance because a pedestrian might be injured by a ball. In all three of these cases the city was performing a governmental function and, assuming that in the present case there was a nuisance, in all three one of the class of persons whose interests were especially susceptible to harm by reason of the maintenance of the nuisance was injured. The rule as to liability in the three cases should be the same. If this was a public nuisance, maintained by the city in a governmental capacity, then the city should be liable or not without regard to the position occupied by the injured person.
I cannot agree with the decision as written. I am authorized to say that Mr. Justice FRITZ concurs in this dissent. *Page 445