Neu v. McCarthy
| Decision Date | 17 April 1941 |
| Citation | 33 N.E.2d 570,309 Mass. 17 |
| Parties | NORMAN J. NEU v. JOSEPH F. MCCARTHY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 3, 1940.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Negligence, In use of way, Motor vehicle, Contributory, Military order Violation of law. Law of the Road. Motor Vehicle, Operation. Evidence, Presumptions and burden of proof, Relevancy and materiality. Military Law.
A rule of the department of public works respecting stopping at the display of a red light at an intersection of ways was binding upon the commander of a convoy of United States Army trucks in time of peace and in the absence of any emergency and of a controlling Federal law to the contrary.
Obedience by a private in the United States Army operating a motor truck to an illegal order given by his commanding officer that he drive through an intersection of ways regardless of what the traffic lights directed, would be a justification for such conduct because it could not be said that the order was so palpably unlawful that a reasonable person in the position of the operator would perceive its unlawful quality.
Disregard by a private in the United States Army, operating a motor truck of a traffic rule of the department of public works in justifiable obedience to an illegal order of his commanding officer would not in itself be evidence of negligence or a bar to recovery for injuries sustained in a collision caused by negligence of the operator of another vehicle. Justification of a disregard of a traffic light by a private in the United
States Army by reason of an illegal order of his commanding officer would not excuse negligence on his part in other particulars than in not heeding the light.
A soldier of the United States Army operating a motor truck, plaintiff in an action for personal injuries sustained in a collision, had the burden of proving justification in disobeying a traffic rule of the department of public works because of obedience to his commanding officer; proof of violation of the rule was upon the defendant.
At the trial of an action by a private in the United States Army for personal injuries sustained in a collision between an army truck which he was driving through an intersection of ways in violation of a rule of the department of public works, and an automobile operated by a private citizen, evidence that the plaintiff's conduct was in violation of army regulations and the "Basic Field Manual" of the army properly was excluded.
TORT. Writ in the District Court of Northern Norfolk dated January 3, 1939.
On removal to the Superior Court, the case was tried before F. T. Hammond, J.
D. H. Fulton, for the plaintiff. R. J. Coffin, for the defendant.
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; VanDresser v. Firlings, 305 Mass. 51 , 55, 56.
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 has 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 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, 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. A similar decision was made as to speed limits in Hall v. Commonwealth, 129
Va. 738.
Compare Ex parte Willman, 277 F. 819. See United States v. Hart, 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. Mitchell v. Harmony, 13 How. 115. Bates v. Clark, 95 U.
Franks v. Smith, 142 Ky. 232. Bishop v. Vandercook, 228 Mich. 299. State v. Sparks, 27 Texas, 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 (nonenemy) 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. Brigham v. Edmands, 7 Gray, 359. Tyler v. Pomeroy, 8 Allen, 480, 505. Luther v. Borden, 7 How. 1, 45, 46. Mitchell v. Harmony, 13 How. 115, 134, 135. Ford v. Surget, 97 U.S. 594. Sterling v. Constantin, 287 U.S. 378, 401. Ferguson v. Loar, 5 Bush. 689. Dills v. Hatcher, 6 Bush. 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.
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 progress. 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...
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