49 Wis. 605 | Wis. | 1880
The learned circuit court instructed the jury, in substance, that the defendant city was liable for the injury sustained by the plaintiff’s wife, if its police officers or proper authorities were negligent in failing to prevent the bear show in the street. This was supposed to be the meaning of the decision of this court on the former appeal, as reported in 42 Wis., 643. It is possible that this is an admissible construction of the opinion, arising from its brevity, and from the failure of the writer to express with precision the real ground upon which the complaint was held good. Butitis to be regretted that the opinion is open to that construction, for certainly the writer did not intend to rest the liability of the city upon any such ground. In Schultz v. The City of Milwaukee,
The distinction seems obvious between a case where the officers of the city authorize and license a show in the highway— that is, become themselves active agents in the commission of the wrong, — and one where they are merely negligent in preventing such show or improper use of the street. Doubtless the city officers were in duty bound to be diligent to prevent the show in the street where it might cause injury to persons traveling thereon. But if they failed to perform that duty, and an-injury resulted from this omission,.we do not understand that the law renders- the city liable for such neglect. It was further suggested that the .liability of the city arose from the fact that it granted a license for the exhibition, for which a fee was received which went into the city treasury. But this fee was not exacted merely for revenue. The granting of licenses for shows was a police regulation, and the fee demanded was not intended to be for revenue, strictly speak
By the Court.- — -Judgment reversed, and new trial awarded.