Neu v. McCarthy

• Decision Date: 18 April 1941
• Citation: 309 Mass. 17,33 N.E.2d 570
• Parties: NEU v. McCARTHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 17

33 N.E.2d 570

NEU

v.McCARTHY.

Supreme Judicial Court of Massachusetts, Norfolk.

April 18, 1941.

Exceptions from Superior Court, Norfolk County; F. T. Hammond, Judge.

Action by Norman J. Neu against Joseph F. McCarthy for injuries sustained in a collision between an army truck and an automobile. The jury found that the accident was caused by the negligence of both parties. Both parties bring exceptions.

Plaintiff's exceptions sustained and defendant's exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

D. H. Fulton, of Boston, for plaintiff.

R. J. Coffin, of Boston, for defendant.

QUA, Justice.

The plaintiff was injured on September 9, 1938, at about 2:30 P. M. by a collision between ‘a United States Army truck’ operated by him and an automobile operated by the defendant. The accident occurred in Dedham at the intersection of the ‘Circumferential Highway,’ known as ‘Route 128,’ which runs north and south, and a county way known as ‘Route 109,’ which runs east and west. The plaintiff was travelling north on ‘Route 128,’ and the defendant was travelling west on ‘Route 109.’ Traffic lights had been installed at the intersection by the proper authorities. In answer to special questions the jury found that the accident was caused by the negligence of both parties, and that the plaintiff drove his truck into the intersection ‘in disobedience of the rule [of the department of public works] directing traffic on State highways to stop outside of the intersection while the red light is displayed.’ Both parties have filed exceptions.

There was evidence of the conduct of the parties that required the submission to the jury of the issues of due care or negligence of both plaintiff and defendant. In this respect the case is not materially different from many other cases of street crossing collisions, and nothing would be gained by a recital of the evidence. The principal question is whether the plaintiff, a private in the United States Army, was under a legal obligation to obey the traffic lights. On the record before us this is important for its bearing upon the issue of contributory negligence which the jury determined adversely to the plaintiff. See Herman v. Sladofsky, 301 Mass. 534, 538, 17 N.E.2d 879;Van Dresser v. Firlings, 305 Mass. 51, 55, 56, 24 N.E.2d 969.

The truck driven by the plaintiff was seventh or eighth in a line or convoy of army trucks commanded by a Captain Boettcher, who rode in a beach wagon at the head of the line. Earlier in the day the convoy had taken a load of baggage from Fort Devens in Ayer to Fort Adams in Newport, Rhode Island. At the time of the accident it was returning to Fort Devens. There was evidence that before starting in the morning Captain Boettcher had given orders to ‘keep a distance on the highway of one telegraph pole,’ and if the first truck went through an intersection to keep going, to ‘follow through regardless,’ to keep up with the convoy; and that he had said to the men that any driver who got lost would be tried by court martial. The plaintiff himself testified that Captain Boettcher told him that if the head of the convoy went through red lights ‘we were to go through, too’; that under Captain Boettcher's orders the plaintiff was intentionally disobeying the rule that ‘State and local highway regulations will be carefully observed’; and that he was ‘just obeying Captain Boettcher's orders. That is his first rule as a soldier.’ Later he testified that he did not know the color of the lights at the time. There was other and contradictory evidence that the orders were to observe all civilian traffic rules and to stop for red lights, unless otherwise directed by police.

The State, as the original and general sovereign, establishes and maintains the public ways and regulates their use. The Federal government may use them for all purposes necessary or reasonably incidental to the carrying out of the powers delegated to it and is not to be thwarted or hampered in the execution of those powers by State regulation. On the other hand the general control remains in the State and may be exercised by it to secure safe and orderly use of the ways for the benefit of all persons and agencies in so far as such control can be exercised without substantial interference with any function of the Federal government. In accordance with these principles this court decided in Commonwealth v. Closson, 229 Mass. 329, 118 N.E. 653, L.R.A.1918C, 939, that the driver of a mail wagon employed by the United States was amenable to regulations requiring him to drive on the right hand side of roads and regulating the mode of turning at corners. This case was cited, seemingly with approval, in Johnson v. Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126. A similar decision was made as to speed limits in Hall v. Commonwealth, 129 Va. 738, 105 S.E. 551. Compare Ex parte Willman, D.C., 277 F. 819. See United States v. Hart, Fed.Cas.No. 15,316, Pet.C.C. 390.

The army is an instrumentality of the United States. Its use of highways within the boundaries of a State would seem to be governed by the same general principles as govern their use by other instrumentalities of the United States, although in the application of those principles proper allowance must of course be made for the special and peculiar necessities and urgencies which at times, but not always, confront a military force in the performance of its duties. A person who enters military service is not thereby relieved from his obligation to observe the law of the jurisdiction in which he finds himself. Speaking generally, he is liable for his torts as are other persons. Little v. Barreme, 2 Cranch 170, 171, 2 L.Ed. 243;Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75;Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471;Franks v. Smith, 142 Ky. 232, 134 S.W. 484, L.R.A.1915A, 1141, Ann.Cas.1912D, 319;Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278;State v. Sparks, 27 Tex. 627. In this country the special powers and privileges of the military, both State and Federal, such as the power of arrest of persons and the power of impressment of private (non-enemy) property have been carefully limited, even in time of public disorder or actual war, to situations of immediate and imperative necessity, and the civil courts have not hesitated to determine for themselves in each instance whether or not such necessity existed. Ela v. Smith, 5 Gray 121, 140, 141,66 Am.Dec. 356;Brigham v. Edmands, 7 Gray 359;Tyler v. Pomeroy, 8 Allen 480, 505;Luther v. Borden, 7 How. 1, 45, 46, 12 L.Ed. 581;Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L.Ed. 75;Ford v. Surget, 97 U.S. 594, 24 L.Ed. 1018;Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 77 L.Ed. 375; Ferguson v. Loar, 5 Bush, Ky., 689; Dills v. Hatcher, 6 Bush, Ky., 606; Bryan v. Walker, 64 N.C. 141;Koonce v. Davis, 72 N.C. 218. In order to maintain the traditional and proper relation between the civil and military authorities it is necessary that the courts continue to perform this duty. See Ex parte Milligan, 4 Wall. 2, 124, 125, 18 L.Ed. 281.

The event out of which this action arises occurred in time of peace. There was no public disorder. No belligerent operations of any kind were in progresss. There was no need of haste. There was no emergency. We can entertain no doubt that private persons in the trucking business could have carried thirteen truck loads of baggage from Ayer to Newport and could have returned to Ayer, whether proceeding by ‘convoy’ or otherwise, without finding themselves hampered or seriously annoyed by obeying the traffic lights on the journey. There is no reason to believe that the army could not have done as well. Possibly the journey had aspects of military training in addition to the immediately practical purpose of conveying the baggage, and perhaps from the standpoint of military training there may be advantages in running in convoys and in keeping those convoys intact and unbroken by the stopping of portions of them as the lights change, but the case discloses nothing to convince us that there is any difficulty which cannot be overcome by reasonable dispositions or which requires that the army submit the community to the serious peril to life and property almost certain to result from disregard of the signals relied upon by all other persons using the highways. The lack of any justifying military necessity distinguishes this case from State v. Burton, 41 R.I. 303, 103 A. 962, L.R.A.1918F, 559, where it was held that a ‘dispatch driver’ of the navy who, in time of war, had been ordered to proceed ‘with all possible dispatch’ was justified in breaking a speed law.

We are not in this case called upon to consider the effect of any Federal law or regulation made in pursuance of law authorizing or requiring disregard of the rules established by the State. No such law has been brought to our attention, and no such regulation has been shown. This distinguishes the case from cases like Ex parte Willman, D.C., 277 F. 819.

One statute of this Commonwealth should be mentioned. G.L. (Ter.Ed.) c. 33, § 58, in force at the time of the accident (see now § 47 of the substituted c. 33 inserted by St.1939, c. 425, § 1), provided that ‘United States forces or troops, and any part of the militia parading, or performing any duty, according to law, shall have the right of way in any street or highway through which they may pass; provided, that the carriage of the United States mails, the legitimate functions of the police, and the progress and operation of fire engines and fire departments shall not be interfered with thereby.’ This section was originally enacted as St.1878, c. 265, § 119. Without pausing to construe or to determine the application of the words ‘performing any duty, according to law,’ we are satisfied that this section was intended to establish the prior right to use and occupy the streets and highways and particular portions...