This is аn action by the administratrix of the estate of Thomas P. Jensen against Katherine Juul, the Irene Independent Consolidated School District, and the Town of Irene for negligently causing the death of plaintiff’s intestate. The defendant school district demurred on the ground that the complaint does not state facts sufficient to' constitute a cause of action, and its demurrer was sustained. The defendant Town of Irene also demurred to the complaint on the same ground, and, from an order оverruling the demurrer, the defendant town appeals.
The complaint alleges, in substance, that the Irene Independent Consolidated School District is the owner and in possession of a tract of land in Hartwell’s addition to the Town of Irene; that Clark avenue runs along' the west side of this tract and intersects at right angles B street which extends along the north side; that the level of the tract is approximately seven feet lower than B street; that from the level of this street to the tract there is a steep and precipitous embankment; that the defendant school district and the defendant town maintain on this tract a ball park equipped with floodlights; that these defendants caused to be constructed partially within B street two concrete benches, one above the other, along the embankment; and that they at no time constructed or erected along the south shoulder of B street any danger signs or guard rails.
It is further alleged that Thomas P. Jensen was a sрectator at a baseball game on the evening of September 25, 1936; that he paid an admission charge and was directed to a seat upon the concrete benches on the north side of the baseball park; that there *4 was a row of automobiles parked along B street above the that the glare of the floodlights on the playing field so concealed the shoulder o-f B street and -the precipitous embankment as to be extremely dangerous for mоtorists intending to park- there; that the defendant- Katherine Juul, intending to- park along the south shoulder of B -street, her automobile over the embankment striking plaintiff’s intestate and causing him injuries from -which he died; that the accident was caused “by reasоn o-f the careless and negligent -driving of said Katherine Juul, and -by reason of the defective -construction of the said street, and the absence of warning signs, barricades or guard rails along the said B Street and particularly along the said south -shoulder of B. Street and by reason o-f tire negligence of the said Katherine J-uul and- the defendants town and school district in failing to place barriers along the shoulder of said B Street as required by law, and in permitting said concrete benches to remain in an unguarded and unsafe condition” ; and that the concurring acts of negligence and- carelessness of the defendants were the proximate -cause o-f the death of decedent.
*5 which, or the person who, would have been liable, if death had not ensued,” is made liable. The statute does not expressly make a municipal corporation liable, and defendant town contends that the term “corporation” in this statute 'has reference only to private corporations, and -that the statute does not impose liability on municipal corporations.
Corporations may be classified as public, quasi public, and private. Public corporations are corporations created “for the government of a portion of the state.” Section 242, Rev. Code 1919. Although a corporation may be public, and not private, because established and controlled by the state for public purposes, it does not follow that such corporation is' in effect the state and that the same immunity from liability attaches. Generally, in reference to liability for -torts a municipal corporation has a -dual character. It is vested with powers 'of a governmental character for the administration of general laws of the state and no liability for tort ordinarily attaches for damages caused by negligence while in the exercise of'such powers. In so far, however, as municipal сorporations exercise powers not of this character, there is no immunity from liability. Norberg v. Hagna, 46 S. D. 568,
We believe that it was within the contemplation of the Legislature to permit recovery in all instances where the person injured could have maintained an action and recovered damages if death had not ensued. Statutes imposing liability for death caused by wrongful act are generally construed in other jurisdictions to extend such liability to municipal corporations. 8 R. C. L. 774. But there are authorities holding to- the contrary. Donohue v. City of Newport, Mass. 561,
It is contended by the defendant town that the maintenance of the ball park by the defendant town was аn ultra vires act and cannot be made the basis of an action for damages; that the ball park is situate on premises owned by the school district for school purposes. The authority of a municipal corporation to aсquire lands for the purpose of establishing a public park and to provide for the improvement and regulation of the same is contained in subdivision 10, section 6169, Revised Code 19x9. It appears from the allegations of the complaint thаt baseball games were played on the grounds from time -to time; that the grounds were equipped with floodlights; that seating accommodations were provided for persons desiring to witness games; that the public was invited to attend upon payment of an admission charge; and that the grounds were maintained by the city and1 the school district. A municipal corporation is not liable for damages for tortious acts which are wholly outside the powers conferred on the municipal corporation. 43 C. J. 933; Wilson v. City of Mitchell, 17 S. D. 515,
It is contended by counsel that no- liability exists for the reason that defendant town was in the exercise of a governmental function. In Norberg v. Hagna, supra, and Glirbas v. City of Sioux Falls, 64 S. D. 45,
Defendant to-wn, although not an insurer оf the safety of patrons, was required to use reasonable care in furnishing reasonably safe conditions for patrons within the baseball park. Norberg v. Hagna, supra; see, also, annotations in 22 A. L. R. 640, 29 A. L. R. 29, and 98 A. L. R. 557. We think that under the allegations of the сomplaint defendant town failed to-perform this duty, and that the -complaint states a cause of action
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unless, as counsel contends, it appears from the face of the complaint that plaintiff’s intestate was contributorily negligent as a matter of law. We are, of course, to be guided in the determination of this contention by the law that the question of contributory negligence is ordinarily a question of fact for the jury; that contributory negligence is a question of law оnly when the court is impelled to say from all the facts that reasonable men could not differ in opinion as to the existence of negligence. Counsel contends that deceased' under the facts alleged must have appreсiated the danger to which he was exposed and that the danger was as well known to the deceased as to the officers and agents of defendant town; that the deceased was required to use his faculties so as to avoid danger, and that his failure in this regard prevents recovery. • The deceased was not under the allegations of the complaint present merely as a licensee, but upon invitation and after payment of an admission fee. He was presеnt in a place provided for spectators, and there was an implied representation that the place was reasonably safe. The facts differ from those appearing in Endorf v. Johnson, 59 S. D. 549,
The order appealed from is affirmed.