Palmer v. Marceille

• Decision Date: 02 October 1934
• Parties: PALMER v. MARCEILLE et al.
• Court: Vermont Supreme Court

175 A. 31

PALMER

v. MARCEILLE et al.

Supreme Court of Vermont. Addison.

Oct. 2, 1934.

Exceptions from Addison County Court; Alfred L. Sherman, Judge.

Action by Alma L. Palmer against Howard Marceille and another. Verdict for defendants was directed, and plaintiff brings exceptions.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

Lawrence, Stafford & O'Brien, of Rutland, for plaintiff.

Wayne C. Bosworth and James B. Donoway, both of Middlebury, and Fenton, Wing & Morse, of Rutland, for defendants.

MOULTON, Justice.

There is little dispute concerning the facts in this case. The plaintiff was taking her children to school in her automobile, and driving at a speed of about 30 miles an hour. The road had a tarvia surface 18 to 20 feet wide, beyond which there was a shoulder, and beyond that a ditch 3 feet deep and 6 feet wide. She observed, about 500 feet ahead, a column of dense smoke, proceeding from a fire at the roadside, which entirely covered the right-hand side of the highway. She slackened speed, but to what extent she was unable to say, a car's length before she entered the obscured area, and kept to the extreme right of the traveled portion of the road. As she did so, her car collided with the rear of a truck standing, in part, at least, upon the tarvia surface, and she suffered the injuries for which she has brought suit She did not see the truck before the impact. The defendants were employees of the state highway board. Plue, the superior, directed Marceille, his helper, to gather into piles and remove the scrapings from the shoulder of the road, preparatory to oiling the surface, and to clean out the ditches. Marceille, assisted by one Wimett, proceeded to do so, and having partly filled the truck with rubbish Wimett, under Marceille's direction, set fire to a fork full of hay which had been raked out of the ditch, the smoke from which was blown diagonally across the road, behind the truck, which was standing on the right-hand side of the highway at a distance variously estimated as being 5 to 10 feet beyond the fire. In causing the fire to be kindled, Marceille was acting under the instructions of county road superintendent Cady. At the time of the accident the fire had not been burning over 5 minutes, and the smoke had been blowing across the highway for 3 or 4 minutes. Plue was not present at that time. The truck was of 1 1/2 tons capacity, with a flat-bottomed platform and rack body, and weighed with its then load about 2 1/2 tons. The collision was of such force that the plaintiff's automobile was overturned, and badly damaged, and the truck, which had its emergency brake set, was shoved a distance of 20 feet off the road, and through the ditch, and the rack was sprung out of shape. The road was substantially level and perfectly straight for some distance on either side of the place of the collision. The plaintiff was familiar with it. Marceille took no steps to warn any approaching travelers of the presence of the truck, although, at the time of the kindling of the fire and until the accident occurred, he was standing nearby, doing nothing. Witnesses called by the plaintiff, who passed the place in the opposite direction just before the accident, testified that the smoke obscured only the side of the road upon which the plaintiff was driving.

At the close of the plaintiff's evidence the trial court directed a verdict for the defendants, and the plaintiff excepted. The grounds for the motion upon which the ruling was based are in brief these: (1) That the plaintiff was contributorily negligent; (2) that she assumed whatever risk might be encountered by her election to drive into the smoke at a substantially undiminished speed; (3) that Marceille was not negligent; (4) that he was engaged in the prosecution of a governmental project, and therefore not liable, even if negligent; (5) that Plue was not present, did not direct the placing of the truck or the lighting of the fire, and had no participation in the occurrence, and therefore could not be held liable for the act or default of Marceille. We take up these grounds in inverse order.

The lastmentioned ground is not an issue here. It is not briefed by the plaintiff as error, and no claim is made that, on the evidence, Plue was liable. The judgment in his favor is, therefore, to be affirmed.

The fact that Marceille was a public employee, performing a governmental act, does not exempt him from personal liability for negligent misfeasance. This principle has been repeatedly recognized. In Plorio v. Schmolze, 101 N. J. Law, 535, 129 A. 470, 40 A. L. R. 1353, the defendant, the driver of a fire truck, while going to a fire, negligently collided with the plaintiff's horse and wagon. The court said (129 A. 470, at page 471): "He (the defendant) must answer for his negligence, though in the performance of a public duty, in the same manner as if he were an individual in private life and had committed a wrong to the injury of another. The servant of the municipality is required to perform his duty in a proper and careful manner, and when he negligently fails to do so, and in the performance of his duty negligently injures another, his official cloak cannot properly be permitted to shield him against answering for his wrongful act to him who has suffered injury thereby." And again (pages 472, 473 of 129 A.): "We think that a sound public policy requires that public officers and employees shall be held accountable for their negligent acts in the performance of their official duties, to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasances in the performance of their public duties." In Moynihan v. Todd, 188 Mass. 301, 74 N. E. 367, 108 Am. St. Rep. 473, the action was predicated upon the alleged negligent blasting of a rock in the highway, by which the plaintiff was injured, and the evidence tended to support the claim. The defendant was the superintendent of streets and directed the operation. He claimed exemption from liability because of his public employment and the governmental nature of the work. The court said (page 305 of 188 Mass., 74 N. E. 367, 369): "We are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasances of their servants or agents. For a personal act of misfeasance we are of opinion that a party should be held liable to one injured by it as well when in the performance of a public duty as when otherwise engaged." The plaintiff's exceptions to a directed verdict for the defendant were sustained. In Nowell v. Wright, 3 Allen (Mass.) 166, 80 Am. Dec. 62, the defendant was the tender of a drawbridge over the Charles river, appointed under the provisions of a statute, and receiving a salary from the public funds. The negligence alleged and which the plaintiff's evidence tended to show was the failure to shut the gates and to hang out lanterns while opening the draw, by reason of which the plaintiff fell into the river. This language appears in the opinion (pages 169, 170 of 3 Allen): "Under these circumstances, a personal liability attached to him (the defendant) for an injury to a third person caused by his improper discharge of his duties. His act was not a mere naked act of nonfeasance. The opening the draw was the cause of the injury. That act was done by the defendant. It is true that it was lawful and proper to open the draw, but such opening was to be done in a proper manner. That required due regard and caution for the safety of travellers passing the bridge, and the use of reasonable safeguards for their protection. The defendant, by omitting to discharge his duty in this respect, may be held responsible for an injury occasioned thereby." An instruction to the effect that the defendant was bound to use reasonable care in reference to travelers passing over the bridge while the draw was open, and was liable for any negligence in this respect to any person injured thereby, was approved. In Skerry v. Rich, 228 Mass. 462, 117 N. E. 824, it is said that: "A public officer undoubtedly is liable for personal acts of misfeasance." And in Rowley v. City of Cedar Rapids, 203 Iowa, 1245, 212 N. W. 158, 161, 53 A. L. R. 375, 381: "The fact that the defendant Kennedy was an officer of the city, and that at the time he was traveling the streets upon business of the city in its governmental capacity (conceding the petition to so show), did not relieve him from the duty to exercise ordinary care in so doing or from a proper observance of a statutory requirement." In Downes v. Town of Hopkinton, 67 N. H. 456, 40 A. 433, the opinion states that if a highway surveyor is guilty of negligence in failing to give reasonable notice of a blast to the plaintiff, she has a remedy, if injured thereby, in an action against him, although the town would not be liable for his negligence. See, also, dictum in Butterfield v. City of Boston, 148 Mass. 544, 545, 20 N. E. 113, 2 L. R. A. 447, and cases cited in annotation 40 A. L. R. 1358. Inferentially the doctrine is recognized in Battey v. Town of Duxbury, 23 Vt. 714, 719. We conclude that the fourth ground of the motion is without merit.

On the question of Marceille's negligence, the defendant places reliance upon the decision in Warren v. State, 219 App. Div. 124, 219 N. Y. S. 530, wherein the facts were much like those in the instant case. Employees of the state were burning weeds and leaves at the side of the road; the smoke from the fire blowing across the highway and concealing their truck parked thereon. The plaintiff's automobile was driven into the smoke and collided with the truck. The action was under a...