3. MUNICIPAL CORPORATIONS 733(1)-LIA-ed he built the pool, estimated its greatest BILITY FOR TORTS-GOVERNMENTAL ACTS.

The city, having purchased a park and built a swimming pool therein under Const. art. 8, $22, authorizing establishment of parks, and Loc. Acts 1905, No. 593, authorizing it to buy and maintain parks, acted as a governmental agency, and was not liable for the death by drowning of a child in the pool, the circumstances of whose death were left to conjecture by the evidence.

Error to Superior Court of Grand Rapids. Action by Alfred Heino, as administrator of Roy Heino, deceased, against the City of Grand Rapids. Judgment for defendant on directed verdict, and plaintiff brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

G. A. Wolf and Ellis & Ellis, all of Grand Rapids, for appellant. Ganson Taggart, City Atty., and C. A. Watt, Deputy City Atty., both of Grand Rapids, for appellee.

STEERE, J. On August 10, 1915, Roy Heino, a boy eight years and three months of age, lost his life, presumably by drowning, in a public swimming and bathing pool maintained by defendant in one of its city parks. Alfred Heino, his father, brought this action as administrator to recover damages for his death, claiming it was attributable to negligence on the part of the city in not properly guarding the safety of children permitted free use of the pool.

The case was tried in the superior court of Grand Rapids before a jury, and a verdict directed in favor of defendant, the trial court holding that in providing and maintaining the bathing pool for the free use and recreation of its inhabitants the city was acting under legislative authority and discharging a governmental duty in performance of which it was not liable for damages resulting from negligent acts of its servants or employés, and that in any event no actionable negligence was shown, as there were no witnesses to the drowning, both the cause and manner of its occurrence being purely speculative.

The pool in question was a sheet of shallow water, from 350 to 360 feet long and about 175 feet across at the widest place, located in a basin on the southwesterly side of the park, where its level was maintained by a controlled supply of water from two small creeks which could be led into or diverted from it. The contour of that portion of the park afforded natural facilities for its construction by a gradual slope of the ground to a depression in which water from the creeks could be impounded to create a pool of the size and depth desired by building a semicircular wall or dam of concrete 55 feet in length at the westerly or lower end, near which the water was deepest, gradually shallowing towards the shores and back to the east. The superintendent of parks, who stat

depth at between 4 and 5 feet, which he located about 10 feet back, or west, of the spillway of the dam, there being a springboard at the west end, from which he stated that he had seen men dive in there, and when they stood up their heads would be out of water. There was some conflicting evidence as to the exact depth in the deepest place. A brother testified that the water would be over deceased's head where his body was found, and he was shown to have been 4 feet 6 inches tall.

Two small buildings were provided as changing or dressing rooms for bathers, referred to as the "boys' house" and the "girls" house," and different parts of the pool are mentioned as the "girls' side" and the "boys' side." In the bathing season a swimming pool director, or guard, was on duty during the hours when the pool was open to the public for swimming and bathing. Many children availed themselves of the privilege

in warm weather, and the record of bathers on the day of the accident was 380, of which number there were 95 boys and 20 girls in the forenoon, and 150 boys and 105 girls in the afternoon. None of them were shown to have any knowledge of just when or how the accident occurred.

Plaintiff lived near Creston Park with his family, and his children were accustomed to go swimming, or bathing, in this pool, which was constructed by the city in 1909 or 1910. They were provided with bathing suits for that purpose, and on the day of the accident five of them went over there together at about 10 o'clock in the forenoon to "go swimming," carrying their bathing suits in a basket. The oldest was a girl named Edna, over nine years of age, Roy being the next younger, and the others respectively six, five, and two years old. They played around the park until the guard came, after which they put on their bathing clothes and went into the pool. After changing to their bathing suits at the buildings provided for that purpose they went to the east end together carrying their other clothing in the basket, which they left under a tree when they went into the water. Roy stayed with the rest in the shallow water for a short time, and while there borrowed some "water wings" from a girl who was with them, which he soon returned and went away, saying he was going over to the boys' side. He is not shown to have been seen alive by the other children or noticed by any one after that time, although there were also other people then in swimming, both boys and girls. When the Heino children were through swimming, or bathing, they found his dry clothing yet in the basket, but could not find him. They waited for a time and looked for him unsuccessfully, after which they went home, arriving there shortly before 12 o'clock, and told of their inability to find him. This was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

reported to plaintiff when he came home to section 9 of said title 11 it is provided, dinner soon after. A search was then insti- | amongst other things:

tuted in which others joined, and his body was found in the lower part of the pool at about 3 o'clock that afternoon. He was shown to have been an active, healthy boy in the habit of going into this pool. His age and height were stated, but whether he could

swim was not disclosed.

The negligence charged was failure to maintain a rope or similar protection for the small children in the shallow end of the pool, that there were places in it where the bottom was muddy and soft, and that the guard was away from the pool, though yet in sight, watching a ball game during a portion of the time the children were there. To what extent such alleged negligence, if shown, may have caused or contributed to the boy's death, would be largely a matter of conjecture, or inference on inference, for no one is shown to have seen him at the time, or to know how it happened; but the important question most seriously argued in the case is the immunity of the city from liability because acting in a governmental capacity in maintaining this free swimming pool in its public park without pecuniary benefit, for the public good.

Section 22, art. 8, of the state Constitution authorizes any city to acquire, establish, and maintain parks within or without its limits for the public welfare. The revised charter of Grand Rapids, under which that city was operating when this accident occurred (Act 593, Local Acts 1905), also confers authority upon the city to provide, improve, and maintain at public expense parks, boulevards, and other public grounds for the furtherance of urban convenience and civic betterment. Un

That such board "shall have the control and management, and shall have charge of the care and improvement of all parks and public grounds of said city, whether within or without said city, and of such parks or public grounds as may hereafter be acquired, laid out, purchasAll the powers and duties now vested in the ed or dedicated by said city.

common council or in the board of public works of the city of Grand Rapids relating to said parks, public grounds or boulevards, are here by transferred as provided in this title."

The park board is required to make an annual report to the common council of its doings and expenditures, with an estimate of the amount of money necessary for park purposes, etc., during the ensuing year, upon which the common council "shall make an appropriation for the care, maintenance and improvement of the said parks of said city." The determined fund is thereafter raised by taxation, and when collected into the city treasury "credited to the fund to be styled the park fund."

[1] No suggestion is contained in any of these provisions relative to parks authorizing a business enterprise or municipal activity maintained for pecuniary gain, or contemplating compensation to the city, but, on the contrary, it is only empowered to provide at public expense met by taxation and furnish to the public gratuitously for the common welfare the recognized sanitary and social benefits which public parks afford. So far as its liability as a governmental agency for negligence in the performance of such functions when assumed are concerned, it is immaterial whether the authorized public duty Salem, 137 Mass. 171, 50 Am. Rep. 289; Nichbe permissive or mandatory. Tindley v. olson v. Detroit, 129 Mich. 246, 88 N. W. 695,

56 L. R. A. 601.

The tort here charged against the munici

der title 3 of the charter, relating to "the powers and duties of the common council," it is given power, subject to the limitations of the act, to legislate upon various matters, amongst which it is authorized (section 15)"to provide for public parks, public grounds pality is not for a direct trespass, but for and squares, and improvement of the same, sub-consequential injury resulting from the negject, however, to the provisions of title XI of this act. May enact all needful ordinances and regulations for the protection and control of all parks, boulevards, cemeteries and other public grounds or places belonging to the city, whether within or without the boundaries thereof."

By section 53 of said title 3 it is again authorized, by a two-thirds vote of the aldermen elect, "to obtain by purchase, or gift, and to hold, improve and properly maintain real estate within the limits of the city for park, driveway and boulevard purposes," and likewise without the city limits, when deemed a necessary public improvement for the benefit of the city.

Under title 11 of the act (to which reference is made in section 15 of title 3) that subject is again taken up with the mandate that "there shall be created and constituted in and for the city of Grand Rapids a board of park and cemetery commissioners," etc. The number of members, manner of selection,

ligent conduct of its agents in providing and maintaining an authorized public park and appurtenances for the general pleasure, comfort and health, free to all who desire to avail themselves of it. This swimming pool, an artificial pond of shallow water with gradually sloping margins, was an appropri ate and common accessory to the ornamental features of the park, not to be classed as a dangerous or attractive nuisance. To construct and permit its free use at proper times and under proper restrictions for bathing or swimming was within the beneficent purposes for which the park was authorized and established. The more serious question upon which counsel divide with sustaining authorities from other jurisdictions is whether in providing for and maintaining this park and pond for the purpose shown and under the authority conferred the city was acting in a legislative or governmental capacity for

prietary capacity was providing a local at- | properly using the facilities offered, caused traction in which private interest as distinguished from public duty was paramount. As directly applied to public parks and liability of a municipality for injury to those patronizing them from negligence in their maintenance, the question has not been passed upon by this court, and opposing counsel cite to their contentions conflicting decisions from other jurisdictions where accidents in parks are involved; their lines of authority harking from two opposing rules of municipal liability for tort sometimes called the New York and Massachusetts rules.

by the structure and its approaches falling through the negligence of the municipality or its servants.

taken in the field of municipal government,, Davidson v. Hine, 151 Mich. 294, 115 N. W. historically and otherwise; the case taking 246, 15 L. R. A. (N. S.) 575, 123 Am. St. Rep. near 70 pages of the printed report. The 267, 14 Ann. Cas. 352; Simpson v. Paddock, court was not then considering the question | 195 Mich. 581, 161 N. W. 898. directly involved here, and while aid to plain- Counsel's statement that "Michigan has tiff's contention may be extracted from some never been, as a state, in the park business," of the views there expressed, the only ma- nor recognized parks as a matter of state terial question decided was the validity of concern, can be accepted as more applicable the act then before the court. Board of Park to the time when those cases relative to the Commissioners v. Common Council of Detroit, Detroit park board were before the court supra, was an application for mandamus to than later. Michigan, through its Legisla compel the city council to provide for and ture, has recognized the acquisition, improveorder issuance of bonds to purchase lands for ment, and maintenance of free public parks a park contracted for by the commissioners. as a governmental function by itself acquirIn discussing the legislation creating the ing, improving, and maintaining at state expark commission and manner of selecting its pense, under the supervision of its appointed members the conclusion was reached that the board, the Mackinac Island State Park; persons named were appointees of the Legis- and, independent of the Legislature, the peolature who could not be regarded as repre-ple of the state, by adopting its present Consentatives of the city for the purpose prostitution, have authorized any city or village posed, and the court had no power to aid it to acquire and maintain parks, even without by legal process, "because, concerning as it their corporate limits, grouping them with does the private corporate interests of the works which involve public health and safety. city, it [the board's action] has been had The federal government is also in "the park without the consent of the city expressly or business" as a governmental function, and by implication given." In holding that the whether they be federal, state, or municipal commissioners, as appointees of the Legis- parks, the beneficial public purpose intended lature, did not then have the power to bind and served by such free recreation grounds the city for an indebtedness to purchase land for the people and the resultant benefits for parks, and that cities have the right to which justify their free maintenance at pubuse their own discretion in regard to incur-lic expense as a governmental activity are the ring indebtedness for property or improve- same except it be in degrees; and in that parments of local concern, it is evident, as ap- ticular a comparison of the beneficial results plied to the question decided, the court re- to the greatest number of people at large garded a city park as a matter of private throughout this commonwealth from the free corporate interest of the city rather than use and enjoyment of Belle Isle City Park and a public governmental activity. And in May-Mackinac Island State Park might indicate or v. Park Commissioners, supra, involving the degree is not necessarily in favor of the a demurrer to an information in the nature larger governmental unit. of a quo warranto to inquire into respondents' authority to usurp a franchise under which they took possession of Belle Isle for the purpose of improving it as a public park, the court, conceding in comment relator's contention that the city was acting in its private corporate capacity, held under the authority conferred by statute the right of the city to take possession of and improve lands outside the city limits as a public park was a franchise, saying in conclusion:

"If respondents usurp it, they usurp a public franchise, public so far as concerns the city, which is all that is important here."

While, like public schools for education, public parks are primarily provided for the recreation, pleasure, and betterment of the people within the limits of the governmental organizations which maintain them, they are not by legal restraint or custom or in fact solely for the benefit of the municipality's own inhabitants, but when thrown open as public parks the public generally without distinction are permitted to visit them and freely enjoy the attractions and benefits gratuitously offered.

Along the line of facilities which parks afford, playgrounds for healthy exercise, [2] It is manifest that in these cases where parks figure the question of liability or non-swimming pools, baths, appliances for manliability of the municipality for imputed neg-ual training, and other equipment for balancligence in their free maintenance for the pub-ed physical and mental development, with inlic welfare, without compensation for their structors as to proper use and methods, are use or pecuniary benefit to the city, was now recognized and frequently adopted in the foreign to the issues involved, and, so far as curriculum of our public schools as essentials appears, not advertently discussed or even of education and sanitation, both acknowledg mentioned. That certain functions of municed subjects of state concern and governmentipal activity may be governmental for some al activity. purposes and of private characteristics in others is recognized. O'Leary v. Board of Fire Com'rs, 79 Mich. 282, 44 N. W. 608, 7 L. R. A. 170, 19 Am. St. Rep. 169; Brink v.

[3] It is said imputed negligence is a matter of public policy, subject to legislative regulation, and "it is for the Legislature to determine how far, if at all, a body whose neg

sense actual, shall be made subject to suit for the misconduct of its employés." O'Leary v. Board, etc., supra. No right of action conferred by statute is applicable here. The constitutionally authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the state, and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at large free advantages for wholesome recreation and entertainment, or all of them.

As applied to public parks of this nature, the fundamental proposition of the Massachusetts rule, which this court has generally approved, is well sustained by the reasoning in the following cases and those they lead to: Tindley v. Salem, supra; Donohue v. Newburyport, 211 Mass. 561, 98 N. E. 1081, Ann. Cas. 1913B, 742; Bolster v. Lawrence, supra; Blair v. Granger, 24 R. I. 17, 51 Atl. 1012; Bishing v. Asbury Park, supra; Board of Park Com. v. Prinz, 127 Ky. 460, 105 S. W. 948; Mayor, etc., of Nashville v. Burns, 131 Tenn. 281, 174 S. W. 1111; Harper v. Topeka, 92 Kan. 11, 139 Pac. 1018, 51 L. R. A. (N. S.) 1032; Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605, 40 Am. St. Rep. 895. Judgment is affirmed.

tled part of the city, realized when 100 feet from a crossing that plaintiff's intestate was attempting to cross the track ahead of his car, but did not at once take extreme measures to stop the car because he judged plaintiff's intestate had time to cross safely, the question of contributory negligence in attempting to cross ahead of the street car was for the jury.

Error to Circuit Court, Wayne County; Geo. S. Hosmer, Judge.

Action by Annie R. Hickey, administratrix of the estate of John P. Hickey, deceased, against the Detroit United Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

Corliss, Leete & Moody and William G. Fitzpatrick, all of Detroit, for appellant. Keena, Lightner, Oxtoby & Hanley, of Detroit, for appellee.

KUHN, J. On July 4, 1915, plaintiff's intestate, John P. Hickey, a man about 60 years of age, was driving an automobile in a southerly direction along Twelfth street in the city of Detroit, and while attempting to cross the tracks of the defendant company on Porter street was struck by one of defendant's street cars and received injuries from which he died a short time afterwards.

The track on Porter street is a single track, over which the Sherman street cars travel in a westerly direction. Ordinarily no other cars use this portion of the track, but on the day of the accident the Baker street cars, HICKEY v. DETROIT UNITED RY. owing to some obstruction in their usual line (No. 71.) of travel, had been rerouted so as to make (Supreme Court of Michigan. July 18, 1918.) their trip west along this part of Porter street, 1. WITNESSES 255(9)-FORMER TESTIMONY. and it was a Baker street car which collided In an action for death from collision between with the automobile of the deceased. The automobile driven by deceased and defendant's block extending from Twelfth street easterly street car, where plaintiff called defendant's

motorman under the statute for cross-examina- to Tenth street is an unusually long one, tion, it was proper for plaintiff's counsel to read Eleventh street not being opened at Porter from the motorman's testimony at the inquest to street, and most of the way along this block refresh his memory as to the speed of the car. the cars run on a down grade. About 450

2. WITNESSES 393(3)—FORMER TESTIMONY.

In an action for death from collision between feet west of Twelfth street (and just beyond automobile driven by deceased and defendant's Vermont avenue) there is a high bridge upon street car, where plaintiff called defendant's which the street cars pass over some railmotorman under the statute for cross-examina- road tracks, and the rise in grade from a tion, it was proper for plaintiff's counsel to read

from the motorman's testimony at the inquest point about 213 feet west of the center of to test his credibility where he contradicted his Twelfth street to the top of this bridge is former testimony. quite steep. The width from curb to curb 3. STREET RAILROADS 117(11) ACTIONS on Porter street varies from 28 feet just FOR INJURIES-CROSSING ACCIDENTS-NEGLI- east of Twelfth street to 29.4 feet just west of Twelfth street, and the distance from the car track to the curb on either side is about 12 feet. Twelfth street from curb to curb is about 30 feet wide at this point.

GENCE-QUESTION FOR JURY.

Where a street car motorman, while operating his car at its extreme speed in a thickly settled part of the city, realized when 100 feet from a crossing that plaintiff's intestate was attempt: ing to cross the track ahead of his car, but did not at once take extreme measures to stop the Mr. Hickey had been driving down Twelfth car because he judged plaintiff's intestate had street at a speed estimated between 10 and 15 time to cross safely, the question of defendant's miles an hour, but, as he approached Porter negligence was for the jury. street, slowed down to 6 or 7 miles an hour FOR INJURIES CROSSING ACCIDENTS-NEGLI- and looked in the direction of the approachGENCE QUESTION FOR JURY. ing car, which was then about 125 feet east of the east curb of Twelfth street. He was then about 15 feet from the car track, and

4. STREET RAILROADS 117(28)

ACTIONS

Where a street car motorman, while operating his car at its extreme speed in a thickly set