208 Wis. 377 | Wis. | 1932
The appellant cannot recover in this case of the respondent because of the negligence of the driver of the wagon if it was engaged in the care and maintenance of
The appellant contends that “the defendant town in this case was not performing a governmental function in repairing or maintaining a town highway and is therefore liable for the negligence of its employees or agents,” and in support of this proposition cites Jensen v. Oconto Falls, 186
Sec. 81.15, Stats., provides that if any damage shall happen by reason of the insufficiency or want of repair of any road in any town, the person sustaining such damage shall have the right to sue for and recover the same against such town. This does not carry responsibility beyond the degree of the anticipation of danger resulting from the defective highway.
Recognizing the burden thus placed upon the town by this section and giving full accord thereto, the act of repairing a highway still remains a governmental function. The officers engaged in such work are representing the people of the state generally, are working in the interest of the general welfare, and the town in these matters is not, under the doctrine of respondeat superior, bound to respond in damages for the negligence of such officers. The distinction still exists between those powers of a municipal corporation which are governmental or political in their nature and those which are exercised in the management and improvement of municipal properties, and as to the first the municipality
By the Court. — Judgment affirmed.