Board of Assessors, 111 N. Y. 505, 2 L.R.A. 148, 19 N. E. 90, is not in conflict. It was there held that a landing place situated in Brooklyn, for a ferry owned by the city of New York for the public purpose of serving the inhabitants of both cities, was not taxable by the city of Brooklyn. The land

"Here, the village of Newport has built and installed a branch outside its corporate limits, which is devoted wholly to the needs of another village, and can never be made available for its own municipal service; and the question is whether the property so created and circumstanced shall be treated as serving an incidental, and therefore a public, use. It might not be easy to frame a safe and acceptable definition of an incidental use, but we think it may safely be said that the supplying of the municipal and domestic needs of another municipality, through a complete system of distributing pipes and hydrants created for that purpose, is not such a use. The plaintiff has as sessed the hydrants located in Derby, and we hold that they are taxable."

The case of West Hartford v. Water Comrs. 44 Conn. 360, 367, is much relied upon by appellee city. In that case there was no effort on the part of West Hartford to tax water pipes and hydrants of the city of Hartford lying within the territory of the former, as in the pending case. The effort was to tax 327 acres of land held by Hartford in the limits of West Hartford for storage of water, to be carried thence to Hartford for the use of its inhabitants. Only a part of that acreage was necessary for that purpose; and this portion was held not be taxable by West Hartford, but 140 acres thereof not needed and not purchased for such use, but only to get the required quantity, were held liable to taxation. We see nothing in this holding that is out of harmony with the principles upon which we here proceed, but rather the contrary. We think it clear that a reservoir within the boundaries of Park City, owned and operated by Knoxville for its own water supply, would not be subject to taxation by Park City.

The case of People ex rel. New York v.

any hardship imposed on Brooklyn in the maintenance of police supervision over it as a part of its territory was treated as an immaterial circumstance. It is thus seen that the property in question served the public of the owning city.

In an opinion handed down on September 26, 1914, the supreme court of Nebraska, in the case of Omaha v. Douglas County, 96 Neb. 865, 148 N. W. 938, held that the property of the municipality of Omaha, used to supply with water the inhabitants of that city and its adjacent suburban towns, including a municipality, the city of Florence, was not subject to taxation by the county of Douglas or the city of Florence. That decision was placed, and well based, on the provisions of the Nebraska Constitution and statute, which are broader than ours. The court said:

"The county of Douglas, school district No. 5, and the city of Florence severally excepted, and each filed a motion for a new trial and appealed from the judgment and order made.

"It will be seen that the question presented is whether property which is municipally owned should be exempt from taxation. Section 2, art. 9, of the Constitution, in part reads:

"The property of the state, counties and municipal corporations, both real and personal shall be exempt from taxation, and such other property as may be used exclusively for agricultural and horticultural societies, for schools, religious, cemetery, and charitable purposes, may be exempted from taxation, but such exemption shall be only by general law.'

"Section 6301, Rev. Stat. 1913, in part provides:'

""The following property shall be exempt from taxes: First-all property of the state, counties and municipal corporations.'

"The foregoing provisions were in force in the state before the property in question was sought to be assessed.

"It is contended by the appellants that the case must turn on the construction of the clause in the Constitution concerning exemption; that at common law property of a state, county, or city used for public purposes was exempt from taxation, and that the part of our Constitution above quoted was merely declaratory of the common law.

"The brief of appellants contains a long argument calculated to show that under the present system the city of Omaha can keep up the interest, pay off the debt, and soon have a net profit amounting to a large sum of money. That is not the question. Whether Omaha can make money by selling water does not reach the constitutional provision; neither does it reach the statute.

"The statute seems to be as broad as the Constitution, and both Constitution and the statute would seem to be plain enough, so that there should be no great doubt as to what was the purpose intended. The framers of the constitutional provision mus! have intended to exempt all classes of municipally owned property. That would seem to be the only fair interpretation which can be placed upon the language used in the Constitution and the statute."

We see nothing in this holding that militates against what we rule in the pending case. That court cites Smith v. Nashville, 88 Tenn. 464, 7 L.R.A. 469, 12 S. W. 924. on the proposition that a municipality's property outside its borders may be exempt from taxation. That case involved the question of privilege taxes, and it was said that a city did not become liable for the payment of such a tax "by reason of the fact that it furnished water to persons outside its own corporate limits, for compensation, who are not shown to have been residents of any city, taxing district, or town falling within the provisions of said act," the act imposing privilege taxes. By this language there was, as we conceive, safeguarded the principle we adopt in the determination of the instant case.

We hold that the physical properties of the complainant city within the boundaries of Park City are not exempt from taxation so far as they serve the municipal purposes of the latter municipality.

We, of course, are not dealing with the power of Park City to tax a pipe line of the other municipality laid through its territory to serve the public and corporate purposes of the city of Knoxville. Nor are we dealing with a power of Knoxville to sell water, or surplus water, to another municipality to be delivered for distribution by the latter through its own plant.

We also determine that Park City is entitled to collect a privilege tax, at the applicable statutory rate, from the city of Knoxville,

The Court of Civil Appeals, affirming the Chancellor, held that the city of Knoxville was not liable to pay either ad valorem or privilege taxes. Reversed, with remand for further proceedings in accord with what is herein ruled.

peals to review a judgment dismissing, ERTIORARI to the Court of Civil Apupon appeal by defendant from a refusal by the Circuit Court for Davidson County to grant peremptory instructions, consolidated actions brought to recover damages alleged to have been caused by defendant's for personal injuries to the minor plaintiff, negligence. Affirmed.

The facts are stated in the opinion. Messrs. Pitts & McConnico and M. S. Ross for plaintiffs in certiorari.

Messrs. A. G. Ewing, Jr., F. M. Garard, and M. T. Bryan, for defendant in

certiorari:

Defendant maintains its playgrounds for the benefit of the public, and not as a source of profit or municipal benefit, and is not liable.

Foster v. Lookout Water Co. 3 Lea, 42; Gorman v. Chattanooga, 2 Tenn. C. C. A. 551; Irvine v. Chattanooga, 101 Tenn. 291, 47 S. W. 419; Richmond v. Long, 17 Gratt. 375, 94 Am. Dec. 461; Wixon v. Newport, 13 R. I. 454, 43 Am. Rep. 35; Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Burrill v. Augusta, 78 Me. 118, 57 Am. Rep. 788, 3 Atl. 177; Mead v. New Haven, 40 Conn. 72, 16 Am. Rep. 14; Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533; Conelly v. Nashville, 100 Tenn. 262, 46 S. W.

and made a recovery of $200. The two cases were tried together. There was a motion for peremptory instructions in the trial court, which was there overruled, but, on appeal to the court of civil appeals, the motion was sustained, and the suits were dismissed. The cases then came here on the writ of certiorari.

The act of a third party in toppling the swing over on the plaintiff was the proximate cause of the injury, and not the city's failure to secure the swing frame to the ground; hence, the city is not liable.

Loftus v. DeHail, 133 Cal. 214, 65 Pac. 379.

Where the act of the child alone, without the concurrence of any negligence on the part of the defendant, causes injury, the child cannot recover, irrespective of whether he can be held responsible for contributory negligence or not.

Lee v. Jones, 181 Mo. 291, 103 Am. St. Rep. 596, 79 S. W. 927; Thomp. Neg. §§ 308, 309; Burckell v. Memphis Street R. Co. 2 Tenn. C. C. A. 575; Van Natta v. People's Street R. Electric Light & P. Co. 133 Mo. 13, 34 S. W. 505; Central R. & Bkg. Co. v. Golden, 93 Ga. 501, 21 S. E. 68; Chicago City R. Co. v. Wilcox, 138 Ill. 370, 21 L.R.A. 76, 27 N. E. 899, 11 Am. Neg. Cas. 402; Reed v. Madison, 83 Wis. 171, 17 L.R.A. 733, 53 N. W. 547; Tucker v. New York C. & H. R. R. Co. 124 N. Y. 308, 21 Am. St. Rep. 670, 26 N. E. 916; Schmidt v. Cook, 1 Misc. 227, 20 N. Y. Supp. 889; Knox v. Hall Steam Power Co. 69 Hun, 231, 23 N. Y. Supp. 490.

If the swings were removed after the hour of closing and the baby baskets were gotten out of the caretaker's keeping surreptitiously by the wrongful intervention of third persons, the city could not be held

liable.

5 Thomp. Neg. § 6071; Welsh v. Lansing, 111 Mich. 589, 70 N. W. 129, 1 Am. Neg. Rep. 268; McFeeters v. New York, 102 APP. Div. 32, 92 N. Y. Supp. 79; Jackson v. Kansas City, 106 Mo. App. 52, 79 S. W. 1174.

Neil, Ch. J., delivered the opinion of the

court:

Appellee, a minor sued by next friend to recover damages for injuries alleged to have been inflicted on him by the negligence of the city's agents in not sufficiently guarding the use of a swing in one of its parks. He recovered a verdict for $600. His father

We are of the opinion that the court of civil appeals reached the correct conclusion. The city of Nashville owns and operates for the benefit of the public, 18 parks and playgrounds without compensation. These parks are under the charge of a park commission, and policemen are assigned to them for the protection of visitors, and, generally, to insure good order.

The injury complained of occurred in a little park in East Nashville. It had been but recently opened. Among other means provided for the comfort of the people were certain swings. One of these was known as a baby swing. It was designed only for small children of from five to seven years old; but, on the occasion in question, three larger boys, perhaps of twelve or fourteen years, while using the swing, turned it over in trying to swing too high. Appellee, who was standing near the swing, was struck by it as it fell to the ground, and was seriously injured. At the time this accident happened lights had not yet been installed in the little park, and children were not expected to play there after dark. When the injury occurred, the seats had been taken from the swings and placed in a house near by, the attendant had left, and the park was considered closed. The boys, however, either remained in the park, or came in afterwards, and removed the swing in question from the place where it had been stationed, procured the seats, it having three, and began to use it, with the result stated, without the knowledge of the officers or agents of the city.

The principal negligence urged against the city was the permission given by the policeman in charge to large boys from time to time to use the baby swing, from which it is insisted they felt justified in using it on the occasion in hand.

We believe that a peremptory instruction might well have been based on the absence of any negligence of the city, even assuming that it was liable for the negligence of its agents in the management of parks. The learned court of civil appeals, however, considered the question whether any liability existed at all against municipalities for injuries to persons frequenting parks by reason of the negligence of the servants of

such corporations, and held that no such liability existed.

It is true there is great contrariety of opinion in the several courts of final resort in this country upon the question whether municipal corporations, in maintaining parks as resorts for the people, are in the discharge of a public duty, or one purely proprietary and ministerial. It is not our purpose to discuss this question at length, but only to indicate, in a general way, that we are in accord with those authorities which hold that such duty is a public one, based on the obligation of the municipality, as a branch of the state government, to guard and preserve and maintain the public health. Parks, in crowded cities, are eminently conducive to this purpose, as places to which the people may go and enjoy pure air, the sight of trees, grass, and flowers, and find the means of release for a time from the weight of care, rest from labor, relaxation for body and mind, and the recuperation of exhausted energies,—all aids to health of incalculable value. We approve the following authorities on the subject: Harper v. Topeka, 92 Kan. 11, 51 L.R.A. (N.S.) 1032, 139 Pac. 1018; Park Comrs. v. Prinz, 127 Ky. 460, 105 S. W. 948; Russell v. Tacoma, 8 Wash. 156, 40 Am. St. Rep. 895, 35 Pac. 605; Blair v. Granger, 24 R. I. 17, 51 Atl. 1042; Steele v. Boston, 128 Mass. 583; Clark v. Waltham, 128 Mass. 567. We have read and considered the cases cited from other states, and, while conceding that they outnumber those we have mentioned, we do not think they are so well founded in principle. Moreover, the ground we have mentioned as governing our decision accords with that controlling other cases in this state on kindred aspects of municipal duty. Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565; Irvine v. Chattanooga, 101 Tenn. 294, 47 S. W. 419; Davis v. Knoxville, 90 Tenn. 599, 18 S. W. 254; Pesterfield v. Vickers, 3 Coldw. 206. We fully sympathize with the observations of Mr. Justice Cooper in Foster v. Lookout Water Co. 3 Lea, 42, 48, to the effect that, while we enforce the liability arising out of the violation of a duty owing in their proprietary character, the inclination of the courts has been not to press the pecuniary liability of municipal corporations to cases where a duty is assumed, not for the mere proprietary or corporate benefit, but for the common good. He continues: The courts "have refused to hold a city liable for the acts of its police officers, although they are appointed by it, or for the acts or negligence of its agents and employees in charge of patients in a public hospital; for the misconduct of the members of its fire department, or for the city's own neglect to

provide suitable engines or fire apparatus, or to keep in repair public cisterns, or continue the supply of water to particular hydrants. The reason is that the hazard of pecuniary loss might prevent the corporation from assuming duties which, although not strictly corporate nor essential to the corporate existence, largely subserve the public interest. The supplying of water for the extinguishment of fires is precisely one of those acts which bring no profit to the corporation, but are eminently humanitarian. To hold a city responsible for the loss of a building, or of whole streets of houses, as sometimes happens, because it might be thought, or because in reality, some of its indispensable agents had been negligent of their duty, might well frighten our municipal corporations from assuming the startling risk."

These views were ratified and utilized and substantially passed into decision and judgment in Irvine v. Chattanooga, 101 Tenn. 294, 47 S. W. 419, in which case it was sought to hold Chattanooga liable for the negligence of its agents in the fire department, whereby complainant's house was lost by fire, through want of diligence on the part of the department. In Conelly v. Nashville, supra, it was held that the city was not liable for the negligence of one of its employees, who, in driving a sprinkling cart, ran against a carriage and injured the occupant. The ground of the decision was that the city, in sprinkling the streets, was engaged in an effort to preserve the public health. In the course of the opinion the court referred, with approval, to authorities of other states wherein it had been held that a city was not liable for an injury caused by the negligence of an ambulance driver; for the loss of a slave placed by his master in a city hospital to be treated for smallpox, but who, through the negligence of his attendant, escaped and died from exposure; for the damage caused by a hook and ladder company while driving rapidly along a public street to a fire; for injury to a pupil from defective heating apparatus in a public school.

It is urged by counsel for defendant in error that all or nearly all of the cases which we have cited in support of our conclusion are from states in which it is likewise held that municipal corporations are not liable for injuries caused by defects in their streets unless made so by statute, on the ground that the construction and maintenance of public streets are a part of the public duty of such corporations, while the contrary view was expressed in this state a long time ago in the case of Memphis v. Lasser, 9 Humph. 757; it having been held in that case that such duty belonged to the