John Ferraro v. Edward I. Earle

• Decision Date: 07 February 1933
• Citation: 164 A. 886,105 Vt. 243
• Parties: JOHN FERRARO v. EDWARD I. EARLE ET AL
• Court: Vermont Supreme Court

164 A. 886

105 Vt. 243

JOHN FERRARO v. EDWARD I. EARLE ET AL

Supreme Court of Vermont

February 7, 1933

January Term, 1933.

Municipal Corporations---Liability of Officers for Negligence or Misfeasance---Automobiles---"Traffic Officer"---Acts 1925, No. 70, 68, Subd 2---Negligence---Right of Driver of Firetruck To Proceed into Intersection When Traffic Light Set Against Him---"Due Care"---Acts 1925, No. 70, 68, Subd. 3---Necessity That Driver of Fire Truck Exercise Care of Prudent Person under Circumstances in Which Situated---Jury Question.

1. Municipal officer is personally liable to private persons for injuries caused by his negligence or misfeasance, when duty imposed upon him is ministerial and not judicial or discretionary.

2. Automatic traffic signal erected at street intersection for special regulation of traffic by city authorities under statutory authority does not constitute a "traffic officer" within statute giving fire department vehicles and certain other favored classes right of way over other vehicles, but providing that wherever "traffic officers" are stationed they shall have full power notwithstanding to regulate traffic.

3. Where fire truck was favored with statutory right of way, act of driving through intersection against red light did not of itself constitute negligence as matter of law.

4. That fire truck was favored with statutory right of way did not authorize driver thereof to proceed in disregard of rights of others, but such right must be exercised in reasonable manner in view of circumstances.

5. "Due care," as used in statute providing that "all intersecting highways shall be approached and entered slowly and with due care to avoid accident," means care commensurate with circumstances calling for its exercise.

6. Driver of fire truck favored with statutory right of way when entering street intersection with automatic traffic signal set against him, was bound to exercise care of prudent person under such circumstances.

7. Whether driver of fire truck favored with statutory right of way, when entering street intersection with automatic traffic signal set against him, was negligent in respect of keeping proper lookout and in respect of speed at which truck was being driven, held for jury.

ACTION OF TORT for negligence to recover for personal injuries sustained by plaintiff by reason of collision between automobile in which he was riding and fire truck driven by defendant Earle, one of city's firemen, in response to an alarm of fire. The suit was instituted against three defendants, all of whom pleaded the general issue. Plaintiff entered voluntary discontinuance as to one defendant. Trial as to the other two defendants at the March Term, 1932 Rutland County, Davis, J., presiding. Verdict for defendant Wood, and verdict for plaintiff against defendant Earle. Judgment on verdicts. Defendant Earle excepted. The opinion states the case.

Judgment against defendant Earle reversed, and cause remanded.

Novak & Bloomer for defendant Earle.

Jones & Jones for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

On August 4, 1929, the defendant Earle was driving a combination fire truck north on Wales Street in the city of Rutland; at the same time the defendant Wood was driving a Buick automobile east on West Street. The two vehicles came into collision at the intersection of these two streets, and the plaintiff, who was a guest passenger in the Wood car, was injured. When the trial began there was a third defendant (the captain of the fire department, who was riding on the truck), but as to him the plaintiff entered a voluntary discontinuance. There was a verdict in favor of defendant Wood; and a verdict against defendant Earle, who brings the case here on exceptions.

At the close of the plaintiff's case, the defendant Earle rested, and moved for a directed verdict on the grounds: (a) That he was operating the fire truck as an officer of the city in connection with its governmental function and so was immune from liability for negligence; (b) that it was not negligence per se for him to drive the fire truck into or through the intersection with a stop or red light of a traffic signal against him; and (c) that the evidence did not warrant the submission of the issue of his negligence to the jury.

It is undisputed that Earle was at the time of collision operating a fire truck belonging to the city of Rutland and in the course of his employment in the city fire department, and was responding to a still alarm. The defendant does not cite any decision, either from this Court or from any other court which holds, either in terms or by analogy, that a fireman is exempt from liability for acts of negligence, or misfeasance, in the performance of his ministerial duties. For support for his contention, the defendant seizes upon a single general statement in Skinner v. Buchanan, 101 Vt. 159, 162, 142 A. 72, 73, but which must be removed from its context to give even the semblance of such support. After citing three of our former cases (Bates v. Horner, 65 Vt. 471, 27 A. 134, 22 L.R.A. 824; Daniels v. Hathaway, 65 Vt. 247, 26 A. 970, 21 L.R.A. 377; and Robinson v. Winch, 66 Vt. 110, 28 A. 884), that opinion states: "They (those cases) hold that municipal officers are not liable to private persons for their conduct whether of omission or commission, if they keep within the scope of their official duties and authority." A reference to the cases cited shows clearly that the statement was made concerning duties, the performance of which requires the exercise of judgment and discretion, or duties which are of a quasi judicial nature. In Bates v. Horner, 65 Vt. 471, 27 A. 134, 22 L. R. A. 824, the defendants, who were trustees of a village charged with the duty of maintaining the public streets, by vote, purchased a ledge outside the village limits and there located a stone crusher to provide stone to be used on the streets. The defendants did not have to do with the actual operations of the crusher. The plaintiff's horse became frightened and unmanageable by reason of the noise of the crusher, and the plaintiff was injured. It was held that since the defendants did not perform any duties except strictly official acts, they were not liable. In Daniels v. Hathaway, 65 Vt. 247, 26 A. 970, 971, 21 L.R.A. 377, it was held that the selectmen of a town are not personally liable for an injury sustained through a defect in a public highway in that town, for the reason that duties in reference to the maintenance and repair of highways are of a quasi judicial nature. In that case it is said: "The liability of public officers to an individual for their negligence in the discharge of an official duty depends entirely upon the nature of the duty in the performance of which such negligence is alleged." And again: "Discretion to a certain extent implies judicial functions; and, when officers act in such a capacity, they are not liable to any private person for a neglect to exercise these powers, nor for the consequences of a lawful exercise of them, where no corruption or malice can be imputed, and they keep within the scope of their official duties and authority." The case of Robinson v....