A complaint for negligence must show the existence of a duty of defendant to exercise due care towards the person injured and a mere allegation that it was defendant's duty to do or not to do a certain act is a conclusion of law and insufficient. Pittsburgh, C. C. & St. L. Ry. Co. v. Leighteiser, 163 Ind. 31 Cyc. 54; 247, 71 N. E. 218; rehearing denied 71 N. E. 660.
The purpose and scope of a corporation is governed by the language of its creation and not by the restricted use of a word or two contained in the act. Vermont Loan & Trust Co. v. Whithed, 2 N. D. 83; Stern v. City of Fargo, 18 N. D. 289; Price v. Fargo, 24 N. D. 440.
Whatever means and instrumentalities are necessary, usual and proper for affectuating the act may be provided therein. Claiborne Co. v. Brooks, 111 U. S. 400; Merrill v. Monticello, 138 U. S. 673.
A school district is as well organized a municipality as a city and may exist with it in territory, in whole or in part, as a city may cover the territory of a county wholly or partially. There is no incompatability between them, and both are separate and different functions. The duties of the others are no part of the ordinary concerns of town or city corporations. Gray on Limitation of Taxing Power, §§ 2148, 2101; Wilson v. Board, 133 Ill. 443, 27 N. E. 203; Adams v. Ewert, 16 S. D. 133, 91 N. W. 474; Tuttle v Polk, 92 Iowa, 433, 60 N. W. 733.
The city is not liable for the negligent acts of the board of education. Sullivan v. Boston, 126 Mass. 540, 9 Am. Law Rep. Ann. 817; McCarten v. City of New York, 133 N. Y. Sup. 939; Brown v. New York City, 66 N. Y. Sup. 382; Diehn v. City of Cincinnati, 25 Ohio State 305.
Grace, C. J. This appeal is from an order sustaining a demurrer to the complaint. The action is one brought by the plaintiff, a widow, against the defendant, to recover damages on account of the death of her son, a boy of 13 years of age, alleged to have been caused by the negligence of the defendant in maintaining certain school playgrounds, alleged to be owned by the city, upon which certain apparatus, hereinafter more fully described, was alleged to have been maintained by it, and by which, in the circumstances herein mentioned, the boy was struck in the head and killed.
The substance of the complaint will be mentioned in order that it may be determined whether the trial court erred in making its order sustaining the demurrer. It contains allegations to the effect that the
