309 Mass. 17 | Mass. | 1941
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
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
The army is an instrumentality of the United States. Its use of highways within the boundaries of a State woxdd 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. S. 204. 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
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, 277 Fed. 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
In our opinion it results from what has been said that the rule of the department of public works was binding upon the commander of the convoy and was binding upon the plaintiff in the absence of any order inconsistent with it which the plaintiff was bound to obey, and that if Captain Boettcher did give an order inconsistent with that rule his order was an illegal one.
But since the jury could find on the evidence that the illegal order was given, it becomes necessary to inquire as to its effect (if given) upon the plaintiff. The plaintiff was not in the position of an agent or employee who has received an illegal order from his principal or employer. He was a soldier. Even in time of peace obedience to orders is the first duty of a soldier. He is not expected to argue points of law with his superior officers. Failure of instant obedience leads to military punishment, which may be severe. Recognition of the peculiar necessity of discipline in the military service and of the position in which the subordinate may find himself through no fault of his own in the - event that commands of his superiors clash with the civil authority has led courts in well considered cases to regard obedience to a military order as a justification for conduct which would otherwise give rise to civil or criminal liability, unless the order is so palpably unlawful that a reasonable man in the position of the person obeying it would perceive
The rule applies to this case, if Captain Boettcher gave the order in question. An order to keep the convoy together even if that involved continuing in the face of a red light, although illegal, cannot, we think, under circumstances not here in dispute, be deemed palpably and obviously illegal to a private soldier in the position of the plaintiff. If the order was given we think it furnished a justification to the plaintiff for passing the red light, and that under those circumstances his mere act in proceeding while the light was red instead of waiting for it to turn green would not be in itself evidence of negligence or a bar to recovery. It does not follow, however, that the plaintiff would be excused by this order from the consequences of negligence in any other respect, as for example failure to slow down or stop if he ought to have foreseen that there
Since the instructions to the jury as to the effect of an order by Captain Boettcher were not in accord with the views here expressed and may have influenced the jury in making the special finding that the plaintiff was contributorily negligent on which the directed verdict for the defendant rests, the plaintiff’s exceptions must be sustained.
There was no error in refusing the defendant’s requests for rulings to the effect that if the plaintiff violated any written rule of the army regarding traffic lights, or any rules of the army which were posted or of which he had received a copy, which rules regulated his conduct at traffic lights, “this is evidence of negligence and if it contributed to cause his injury he cannot recover,” or in striking out the army regulations and the “Basic Field Manual,” portions of which had previously been introduced in evidence. The defendant’s interest in these regulations springs from clauses contained in them requiring, in general, observance of State and local highway rules. There is nothing in them purporting to authorize drivers to violate those rules. The evidence leaves it doubtful whether the regulations were intended directly to bind the individual soldier and whether they were any more than directions in the nature of general orders to officers who were expected to carry them into execution by giving in turn proper orders to the enlisted
Exceptions raising questions not specifically discussed in this opinion depend upon the wording of particular requests for rulings and upon principles of law exemplified in many decisions. These questions are not likely to arise in the same form at another trial. It would not be profitable to examine them in detail now.
Plaintiff’s exceptions sustained.
Defendant’s exceptions overruled.