#### Higgins, Appellant, vs. City of Superior, Respondent.

*December 16, 1907*

January *8, 1908.*

*Municipal corporations: Fire department: Negligence in selection of servants: Negligence of driver: Liability of city.*

1. Under a complaint alleging, in substance, that plaintiff was injured through the negligence of a fireman of a city in charge of and driving a team of the defendant on the streets; that his negligent conduct, which was well known to the city officials when they selected him for such position, was the result of his intemperate habits and reckless disposition, and that, though fully apprised of Ms negligent and reckless conduct after having placed him in charge of his public duties, he was not removed, *held,*even if the city officers were remiss in their official duties, such neglect of duty constituted no legal ground for holding the city liable for the damages resulting therefrom.

2. Where a city is engaged in the performance of a public service, which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or the community, no action will lie against the city for any negligence or misconduct of its officers and agents engaged in the discharge of such duty.

3. Members of the fire department are within such class of city employees.

4. Where one is injured by the acts of a driver of a city fire department, and the acts which the city engaged the driver to perform are not unlawful or inherently dangerous, and the dangers complained of resulted from the negligent manner in which such driver performed the lawful functions of the city, the wrongful acts complained of are the acts of the city’s servant in-the management of the fire department, for which no action will lie against the city.

Appeal from an order of the circuit court for Douglas county: A. J. Viuje, Circuit Judge.

*Affirmed.*

On October 1, 1904, the plaintiff was driving upon Fifty-eighth street, one of the public streets of the city of *Superior.*He was going toward his home and was run into by a team and wagon of the city fire department driven by one of the *265city’s firemen, Larry Strong, and as a result of tbe collision the plaintiff’s horse was killed, his buggy destroyed, and his leg was crushed and broken so that he has entirely and permanently lost the use of it, and he has sustained other injuries.' It is alleged that the driver of the city team had been employed by the defendant and placed in charge of the city team about one year prior to the time of the accident, and that to the knowledge of the defendant he “was addicted to the use of intoxicating liquors and habitually intoxicated, wholly and entirely incompetent for service as a fireman and in the driving and handling of said team, and he was wholly and entirely unfit for said service, habitually reckless, careless, and negligent, and unsafe and dangerous to public travelers upon said streets.” It is also alleged that “the defendant was careless and negligent in employing said Larry Strong, in placing him in its service as a fireman, and in placing him in charge of, giving him authority and control over, said team and the driving and handling of the same.” It is also alleged that, having knowledge of these facts and the negligent manner in which such driver handled the team and used the public streets,

“the defendant carelessly and negligently failed and neglected to discharge the said Larry Strong, its said fireman, or to take him out of the defendant’s service, but on the contrary carelessly and negligently retained him in its service, and continued him in charge of its said team and wagon until after the accident and injury to the plaintiff; and the defendant, and its officers, agents, and servants having charge and control of its streets, carelessly and negligently failed and neglected to take any steps or means to prevent the said Larry Strong from so driving and handling said team on said Fifty-eighth street, or to prevent him from so obstructing, endangering, and impeding public travel thereon, . . . said fireman thereby, and through defendant’s carelessness and negligence, creating and becoming a public nuisance upon said streets and endangering and obstructing the public use and travel on said streets.”

*266Snob conduct and negligence of tbe city officers in not removing bim and in not preventing such use of tbe street is charged to have constituted an obstruction and a nuisance and to have been tbe cause of plaintiff’s injuries. Damages are demanded in tbe sum of $12,000. Defendant’s demurrer to tbe complaint on tbe ground that it did not state facts sufficient to constitute a cause of action was sustained. This is an appeal from tbe order sustaining tbe demurrer.

*W. P.*Crawford, for tbe appellant.

Eor tbe respondent there was a brief by *T. L.*McIntosh, city attorney, and *L. K. Lusc,*of counsel, and oral argument by *Mr. Luse.*

SiebegkeR, J.

The substance of these allegations is that tbe plaintiff was injured through tbe negligence of a fireman of tbe city in charge of and driving tbe team on tbe streets of tbe city; that bis negligent conduct, which was well known to tbe city officials when they selected bim for such position, was the result of bis intemperate habits and reckless disposition; and that, though fully apprised of bis negligent and reckless conduct after having placed bim in charge of these public duties, they neglected to remove bim. It is averred that this action of tbe city officials in so employing and retaining this driver in tbe city’s service renders tbe city liable for bis wrongful conduct while be was performing such public services for tbe city, upon tbe ground that such negligent and reckless driving of tbe city’s team and fire apparatus upon tbe public streets constituted a dangerous obstruction in tbe streets, rendering tbe city liable for any injury caused thereby. Tbe gravamen of tbe complaint is tbe negligence of tbe driver of tbe team and tbe omission of tbe city authorities to fully discharge their public duty by selecting and retaining bim in tbe employ of tbe city with knowledge of bis negligent conduct and intemperate habits. Unquestionably tbe city officers were remiss in their *267official duties if they selected and retained an incompetent and reckless driver to take charge of a team connected with the city’s fire department. Such neglect of duty, however, constitutes no legal ground for holding the city liable for the damages resulting therefrom.

The only other ground upon which a liability against the city is claimed is the alleged negligence of the driver as a city employee in the management of the team and wagon of the fire department of the city. The rule of the city’s non-liability for any negligence of city officers and employees in the conduct of this branch of the city’s affairs is well established and clearly defined in the decisions of our state. The early case of *Hayes v. Oshkosh,*33 Wis. 314, declared the law on the subject, and it has been followed in numerous subsequent cases. It is there held that when a city is “engaged in the performance of a public service, . . . which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community,” no action will lie against it for any negligence or misconduct of its officers and agents in the discharge of such official duties, and that the members of the fire department are within this class of city employees. *Manske v.*Milwaukee, 123 Wis. 172, 101 N. W. 377; *Liermann v. Milwaukee,*132 Wis. 628, 113 N. W. 65; *Schultz v. Milwaukee,*49 Wis. 254, 5 N. W. 342; *Kempster v.*Milwaukee, 103 Wis. 421, 79 N. W. 411.

It is said by the appellant that the facts alleged show that the conduct of the driver of the team of the fire department was in legal effect such as to cause an obstruction of the streets of the city, imperiling people lawfully using them, and that this was known to and permitted by the city officers, and that this renders the city liable for a violation of the city’s duty to keep the streets clear from obstructions and in a safe condition for travel. This argument loses sight of the fact that the acts which the city engaged this driver *268ta perform were not unlawful or inherently dangerous, and that the dangers complained of resulted from the negligent manner in which such driver performed the lawful functions of the city. This makes the wrongful acts complained of the acts of the city’s servant in the management of the fire department and brings them within the principle established by the foregoing and other cases. *Saunders v. Fort*Madison, 111 Iowa, 102, 82 N. W. 428; *Gillespie v. Lincoln,*35 Neb. 34, 52 N. W. 811; 5 Thomp. Comm. on Neg. § 5785 *et seq.*

*By the Court.*— The order appealed from is affirmed.