(concurring). I assume that in Wisconsin, following the New Rngland group of states holding the same way, neither town, village nor city is liable for the negligence of its officers having in charge the “maintenance and repair of highways”; that such officers, though appointed by the town, village or city, as “to the maintenance and repair of highways,” are the officers and agents, not of the municipality, but of the state; the municipality to that extent, performing a state governmental function.
I assume also that in determining whether this rule is applicable ■to the facts of any case arising in Wisconsin, not before adjudicated •by the Wisconsin courts, the general trend of the Wisconsin cases— 'the way in which the Supreme Court of Wisconsin in cases of this kind has been facing — must be kept in mind and followed.
It is admitted, however, that the precise case now being considered has never been decided by the Supreme Court of Wisconsin. The question it presents, therefore, is an open one, even according to the Wisconsin law, and must be dealt with as such by this court in its effort to find out what the law on the subject is. . ,
That question is this: The city being under duty to operate a bascule bridge across a stream made navigable by Jhe laws of. the United States, and having appointed a bridge tender to attend to such operation — all needful guards, railings and other means .of warning travelers having been provided also, to prevent a traveler from going upon the bascule when it is in operation — is the city *651Hable to such traveler, who, through the negligence of the bridge tender has been led to go upon the bascule when in operation, and has received injuries therefrom? The question may, according to my view, be answered in the following propositions:
1. The operation of a draw or bascule is in no sense, in the contemplation of the Wisconsin law, within the meaning of what is meant by the phrase “the maintenance and repair of highways.” The bridge at rest may be a part of the highway, so that for injuries through defects, say in a plank, there might be no recovery from the city. But the process of turning this bridge around, or lifting it up, so that the highway is for the time interrupted, and the process of restoring the highway from this interruption, is a special service arising out of the discharge of a special duty, not contained or contemplated in the ordinary duty of maintaining and repairing highways. To hold otherwise, would be to extend unwarrantably, it seems to me, that plain and well established subdivision of the law.
2. Where in the performance of such a special service, an agent is employed by the city, the city must respond for the negligence of the agent to him who, being at the time and place in the exercise of his own rights, and without contributory negligence, has received injuries as the result of such negligence, even though the injured person be a traveler on the highway.
3. The liability of the city in this respect does not grow out of special statute. It is a liability that grows out of the general law in Wisconsin, and is based upon the general principle that where it is the special duty of a city, as a city, to do a given thing, and it is engaged in the attempted performance of that duty through an agent, the city must respond for the negligence of the agent.
These propositions, it seems to me, are inherent in the principles on which the Wisconsin cases, approximating this case, have been decided. In Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565, th(e city was held liable for the negligence of its agent in the construction of the w-alls of a cistern whereby the plaintiff was injured, the court holding that it being the special duty of the city, as a city, to construct cisterns for fire purposes, and the city being engaged in the attempted performance of this duty through its own private agencies, the case was the common one of special employment for the performance of special service, for and on behalf of the city. The mere fact that the cistern was for the use of the fire department, was held not to make its construction a performance by the city of its dirty under the governmental power to maintain a fire department; nor the fact that without such cisterns the governmental fire department would be practically useless; nor would the fact, I take it, that men otherwise connected with the fire department may have been employed to do this special service, have made the case a different one. The governmental function of the city, as to its fire department, is to put out fires. With the putting out of the fires, and the ordinary care-taking of the means through which that work is done, the governmental function begins and ends. What goes before, and what follows, though related to the putting out of *652fires, and essential to the fire equipment, is to be regarded as a special service in whose performance the city, like any one else, is to be held responsible for the negiigence of its agents. Note this then, the point of the case cited: That though the city be not liable for the way its officers perform the duty commonly known as fire protection, that exemption from liability begins and ends just where the duty of the fire department begins and ends — is not to be extended to any other performance of duty by the city, even though such performance may contribute to the means wherewith it performs its governmental duty. In other words, the Wisconsin court is not extending, as the case cited shows, the exemption of a duty beyond the plain, well defined class of governmental functions upon which the New England doctrine was built up.
In Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871, the city was held for the negligence of the bridge tender in not opening the draw in time to prevent collision with a vessel, whereby a traveler on the river vessel received injuries. Now the bridge was not in that case an obstruction, in law, of the river highway. The bridge was permitted, under the law; and was constructed in accordance with the law giving such permission. The fault of the city on which •recovery was based, was not that the bridge, as constructed, was an unlawful obstruction, but that the draw, as negligently operated, made it for the time being, an obstruction resulting in injury to the traveler. The law contemplated that the bridge should be there jrrst as it was, a part of the highway for travelers on land. The law contemplated also that the river should be there, just as it was, a highway for travelers on the river. But to the end that these two highways should be placed with reference to each other — so interlocked— that when one was in use, the other would not be open for use, the draw was interpolated, with a bridge tender to operate it; and because the operation o'f the draw was no part of the maintenance and repair of the highway, but was a special service that alternately opened and closed two intersecting highways, the rule applied to lack of “maintenance and repair” cases was not applied. Of course the decision related, in terms, only to the traveler by river. But I can see no reason why it should not apply, in principle, to the traveler on land as well — the point of the case being that the bridge tender was not an officer of the city, within the governmental duty of the city, to maintain and repair the' highways, but a special servant to perform this special service, growing out of the intersection of the two highways, and the duty of the city, as a city, to so interlock them that both could be operated with safety.
Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176, goes nearly to the extent of- governing the case under consideration. Logically it discloses, I think, the principle that governs this case. The injury in that case was to a traveler on the land highway, falling into an open draw. The negligence for which the city was made responsible, was in not providing a guard, bar, or light, whereby the traveler would have been warned of the danger that an open draw presents. Now as"to this traveler on the land highway, had it been the city’s *653duty, as a mere governmental division of tlie state performing a governmental function, to provide a bar, guard or light, that the traveler might not fall into the draw, the court would have been compelled to place the case among other cases relating to maintenance and repair of the highways, and' have thus exempted the city from liability. But the court did not take that view. It held the city liable. And it could only have done this upon the principle that whatever might have been the ruling had the break in the continuity of the street been caused, say by some casual flood cutting through the highway, (though I am aware of no such case), the duty of safe guarding an open drawT across the river, is a thing so different that, logically, it takes the draw bridge and its operation out of the rules that govern liability for lack of maintenance and repair of highways. And this being thus decided, the whole doctrine of immunity of cities under the Wisconsin law, from the consequences of negligence connected with the maintenance and repair of streets, stops short of the operation of a draw across a navigable stream, and the warning to be given travelers in that connection.
Indeed, I cannot discern upon what reasoning the law could hold the city liable to a traveler upon the river, under the doctrine of respondeat superior, and not hold it liable for the same character of negligence to a traveler on the land; or how it could hold the city liable to a traveler on land, for negligence in not providing a guard or warning’ lights, and not hold it liable, under the doctrine of re-spondeat superior, for the negligence of its agent in not using such guard or lights, after they were provided. An affirmance of the judgment below, it seems to me, would throw tlie whole law as already declared by the Supreme Court of Wisconsin, into disorder.