dissenting.
It is said that, in establishing and maintaining parks, the city exercises a governmental function. The supreme court of the United States has said:
“A distinction is to be noted between the liability of a municipal corporation, made such by acceptance of a village or city charter, and the involuntary quasi corporations known as counties, towns, school districts, and especially the townships of New England. The liability of the former is greater than that of the latter, even when invested with corporate capacity and the power of taxation. '* * * It is denied that a munic*729ipal corporation (as distinguished from a corporation organized for private gain) is liable for the injury to an individual arising from negligence in the construction of a work authorized by it. Some cases hold that the adoption of a plan of such a work is a judicial act; and, if injury arises from the mere execution of that plan, no liability exists. Child v. City of Boston, 4 Allen (Mass.) 41; Thayer v. City of Boston, 19 Pick. (Mass.) 511. Other cases hold that for its negligent execution of a plan good in itself, or for mere negligence in the care of its streets or other works, a municipal corporation cannot he charged. City of Detroit v. Blackeby, 21 Mich. 84, is of the latter class, where it was held that the city Avas not liable for an injury arising from its neglect to keep its sidewalks in repair. The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so numerous and so Avell considered that the law must be deemed to be settled in accordance Avith them.”
The opinion then cites English authorities, cases from the supreme court of the United States, and from ten of the states of the Union. Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440. This seems to be the Avell-settled rule of the common law. It is for the city to decide whether it will have parks, and when, Avhere aud in what form it will have them. In building them, and caring for them, it is not assisting the state in any way to carry out the laws of the state, but it is acting independently and for its own interests, and there seems to be no reason for holding that it is exercising a governmental function, any more than in laying out, constructing and caring for its streets.
Even if it should be held that the city is exercising a governmental function in constructing parks and improvements therein, and that, therefore, it is not liable for the negligence of its agents in connection therewith, it would still be liable in an action of this kind. As is said in the note under Bernstein v. City of Milwaukee, *730158 Wis. 576, L. R. A. 1915C, 435: “ A municipality may not maintain a public nuisance, even where it is performing a governmental duty.” And in 20 R. C. L. 380: ‘ ‘ The te'rm nuisance, in legal parlance, extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.” That the thing complained of in this case endangered “life or health” cannot be doubted. No one could discover the danger- from the. appearances, and this brings it within the principle of the “Turntable eases.” In those cases the liability arises from maintaining an “attractive nuisance.” The cases generally involve injuries to children, who are not able to discover the danger. In the case at bar the danger was hidden. No one could discover it, and the principle, therefore, applies to such cases. It is conceded that this diving-place was authorized-by the city. By holding that the city, in authorizing it, was exercising a governmental function, it is now relieved from liability. I cannot concede that to authorize its construction required the exercise of any governmental function, but, even if the city can be said to have exercised a governmental function in that respect, the thing was dangerous to life and health, and was therefore a nuisance, and “a municipality may not maintain á 'public nuisance, even where it is performing a governmental duty.”
Mobbissey, C. J., concurs in this dissent.