The Law as to Injuries to Firemen in the Line of Duty
Important Decisions of Higher Courts Interpreting the Law—Right of Way of Fire Apparatus—The Law as to Contributory Negligence
GENERALLY speaking, the ordinary legal rules which regulate the conduct of motor vehicle drivers engaged in the pursuit of their own private business or personal pleasure are not controlling in the case of members of a Fire Department answering an alarm of fire. This law is adopted because while fire is one of the most useful and beneficial of human agencies, yet it is also one of the most destructive, and in case of a building fire, unless prompt and heroic measures are resorted to, it frequently gets beyond control. Especially in large cities its toll of property runs into the millions, and the human lives that are sometimes its prey may be counted by the score.
The Courts have recognized the fact that the individual efforts of the citizens are ineffectual to extinguish fires and have, therefore, provided trained men and special apparatus for the public protection. Moreover, to secure the highest efficiency in the operation of the fire apparatus and the best results in the efforts of the men to preserve life and property, the Fire Department vehicles are given by various city ordinances the right of way, and all other persons are required to yield such right of way so as not to obstruct the rapid passage of men and equipment to a conflagration.
When answering calls to a fire the members of the department are sometimes required to take risks which would be deemed negligence upon the part of the persons engaged in his private business. It is often their duty to act in the face of considerable danger to themselves, and to hesitate or stop would result in disastrous consequences. Frequently haste and fearless performance of duty will avoid widespread disaster, and result in the saving of both life and property.
For these reasons the Courts have held that to give timely warning to all persons of their approach, and secure an uninterrupted passage of men and equipment as they rush along the streets to a fire, gongs or other suitable alarms are constantly sounded, and thus ample notice and opportunity is given to all persons to avoid accident and interference. Therefore, a person, or driver of a motor vehicle, is deemed negligent if he fails to hear the warning signals of an approaching fire truck.
SUBJECTS TREATED IN THIS ARTICLE:
When the Fire Apparatus has Right of Way.
The Case of a Municipal Vehicle Used for Private Errand.
Injuries Sustained by Employee in Dangerous Situation.
When a Municipal Fireman is not Contributorily Negligent.
Injury to Member of Fire Department through Negligence of Captain.
Interpretation of Injury Laws.
How Damages for Injuries are Estimated.
When a Municipal Employee may not be Dismissed.
For instance, in Hartnett vs. Standard Furniture Company. 299 Pac. 408, it was shown that a city ordinance was enacted, as follows:
“Vehicles of the Fire Department, when going to on duty at, or returning from a fire, shall have the right of way over all vehicles and persons. Every operator of a vehicle, upon the approach of the apparatus of the Fire Department, shall immediately proceed to the right hand curb and come to a full stop, standing parallel thereto. At points where fire signals are located, when the alarm sounds or fire signals are given, all operators of vehicles within sight or hearing thereof. shall follow the directions indicated above and shall remain so stopped until the fire signals cease sounding, and then proceed only in the event that no fire apparatus is approaching, except where traffic officers are stationed.”
One day a fire alarm was sounded and a fire truck started from the station to the location of the conflagration. As soon as the fire truck started from the station, a number of blocks distant from the scene of the collision, two sirens on the truck commenced to sound. One of the sirens was an automatic siren attached to a flywheel and sounded as long as the engine ran. The other was a hand siren.
Notwithstanding the fact that these sirens were being sounded, the driver of a furniture truck drove directly in the path of the approaching fire truck, resulting in a collision in which the captain of the Fire Department was seriously injured. He filed suit against the furniture company to recover damages.
During the trial nearly all of the witnesses for both sides testified that the siren on the fire truck was sounding as it approached the intersection. Some of the witnesses testi tied that they heard it a considerable distance. Other witnesses testified that they only heard the siren immediately preceding the entry of the fire truck into the intersection. Some said the sound was loud and clear; others that the sound was faint. All of the witnesses testified that apparently the driver and helper on the furniture truck did not hear the siren and entered the intersection unconscious of its presence.
It is interesting to observe that the higher Court held the captain of the Fire Department entitled to recover heavy damages from the furniture company, and said:
“It is not at all Improbable that the driver of the furnlture truck did not hear the fire siren. The noise of his truck may have drowned the sound of the siren. Others, however, heard the siren, heeded the warning, and parked their cars as required by the city ordinance. Appellant’s driver did not hear, neither did he see. He testified that when he arrived at the intersection he looked to the east and to the west and did not see tie fire truck. It is inconceivable that had he looked he would not have seen that truck. . . . Accepting as true the testimony of appellant’s driver that he looked and failed to see the approaching fire truck, the driver was clearly negligent. There is no excuse for his failure to see the fire truck. We may disregard his failure to hear the siren, refrain from considering his infraction of the provision of the ordinance as to the rate of speed one may travel across an intersection, but we cannot brush aside his testimony that he looked and failed to see a fire truck which could not have been more than a few seconds’ time distant from the intersection. . . . Persons in control of fire apparatus belonging to the city Fire Department are not ‘required to observe the ordinary speed limit fixed by ordinance for vehicles traveling upon the public streets.’ “
Municipal Vehicle Used For Private Errand
Usually state and city laws are valid and enforceable which require privately owned vehicles to give right of way to Fire and Police Department automobiles being operated for official purposes. However, when a public vehicle is being driven for the personal business of the driver be is expected to use the same degree of care as the drivers of privately owned cars. So held a higher Court in the recent case of Swift & Co. vs. Payne, 134 So. 626.
The facts of this case are that a state law provides:
“The driver of a vehicle upon a highway shall yield the right of way to Police and Fire Department vehicles when the latter are operated upon official business and the drivers thereof sound audible signal by bell, siren or exhaust whistle. . . .”
A member of a municipal department while driving a vehicle to his home to obtain dinner negligently collided with a motor-truck. The municipal employe sued the owner of the truck for damages on the ground that its driver should have given him the right of way.
It is interesting to observe that the lower Court held the owner of the truck not liable and the higher Court upheld this verdict, saying:
“It will be conceded that plaintiff was not bound to observe the speed law If any emergency called for greater speed In the performance of his duty. … It will be noted upon consideration of the statute and the evidence . . . plaintiff was not performing any official duty requiring unusual speed nor was he relieved of any duty of due care which would have rested upon a private citizen in the same situation.”
Injuries Sustained by Employe in Dangerous Situation
It is settled law that an injured laborer may not recover damages if he volunteered to incur an apparent danger, although, of course, he may be entitled to compensation.
On the other hand, an employer and city officials, are bound to use care to avoid emergencies likely to expose employes to danger, In other words, the employer may not carelessly create a situation of emergency or unusual danger, although the contract of employment requires the laborer to expose himself to similar hazards. While the employer’s breach of legal duty may not entitle the employe to disobey orders, yet it does give him the rignt to cancel the contract of service, and if the employe realizes the danger and continues in the employment he is not entitled to recover damages for an injury.
For example, m the late case of Clairmont vs. Cilley, 153 Atl. 465, it was disclosed that a truck stalled on a bill. The brakes were not strong enough to hold the truck and a superior called to an employe to put a stone under the rear wheel. While the employe was in the act of placing the stone under the wheel the truck started rearwardiy and ran over his hand causing severe injuries tor which he sued to recover damages.
Although the lower Court held the employe entitled to damages, the higher Court reversed this decision, and said:
“Owing the service, he (employe) is not a volunteer, and his assumption of risk is imposed, not because of nonrelationship with his employer, but as an incident of the relationship. . . . The sense of duty to obey and the stress of emergency may so outweigh and displace other thought as to make its requirement arbitarary in taking action. . . . The fact that the servant is acting under direct orders of the master is not enough to excuse him from making a choice and assuming the risk if he continues his work.”
Municipal Fireman Not Contributorily Negligent
While it is true that ordinarily a private employe or laborer is not entitled to recover damages for an injury, where it is shown that be was contributorily negligent and knowingly placed himself in a position of danger, yet various Courts have held that this rule is not applicable to firemen, policemen or other municipal employes whose regular duties require that they assume dangerous duties.
For illustration, in Hughes vs. English, 152 Atl. 473, it was shown that a woman attempted to drive across a street and collided with a truck to which a traffic officer had given the right of way. The result was that the truck was thrown out of its course and struck the officer causing injuries for which suit was filed against the woman to recover damages.
The counsel for the woman contended that the officer was not entitled to a recovery because he had knowingly placed himself in a dangerous position. However, the higher Court held the officer entitled to receive $7,500 as compensation for the injury, stating the following important law:
“The officer was in the lawful discharge of his duty, about to relieve a brother officer. He was necessarily in the body of the street for that purpose. He could hardly be supposed to anticipate that the defendant would drive her car against the traffic directions and collide with another vehicle and thereby cause injury to one in his situation. . . . Our examination of the proofs convinces us that the verdict was not against the weight of the evidence, and that the damages were not excessive.”
Captain Injures Member of Fire Department
As previously stated all persons irrespective of their official position are duty bound to exercise care to prevent injury to all other persons. This rule of the law is applicable with respect to officials of Fire Departments and other persons who through negligence cause injury to innocent and careful persons.
The latest higher Court case involving this important point of the law is Vandell vs. Sanders, 155 Atl. 193. The facts of this case are that the captain of a municipal Fire Department responded to an alarm of fire. While proceeding to the scene of the trouble in his own private automobile the captain overtook a member of the Fire Department and invited him to ride. The latter accordingly stepped onto the left hand running board of the machine and reaching across the body of the car held on to the doors on the opposite side. In this position he rode in safety almost to the scene of the fire. At the last intersection of streets which it was necessary to traverse the captain slowed down and the other fireman shifted his position in order to ascertain the exact location of the fire, so that be then stood on the running board holding on to the two doors on the left hand side of the car. The captain made a sharp turn to the right as result of which the fireman was thrown to the ground and injured.
The injured fireman sued the captain to recover damage? on the grounds that the captain was driving at an unlawful speed, particularly in view’ of a state law which fixes speed limits of 20 miles an hour on any highway in a business district, and that the captain’s car was not a part of the fire apparatus of the city and he had no greater rights as to speed than any other individual.
THOMAS F. MAGNER
(Continued on page 945)
The Law as to Injuries to Firemen
(Continued from page 926)
The captain contended that he was privileged to drive at any speed in view of the following law:
“The provisions of this section (relating to speed) shall not apply to motor vehicles of a Fire Department, motor police patrols or motor ambulances, when in the emergency service of their respective departments.”
Although the lower Court held the captain liable in damages, the higher Court reversed the verdict and ordered a new trial stating the following important law:
“Notice must be taken of the fact that the Fire Department or fire patrol ve hicles is a more inclusive phrase than motor vehicles of a Fire Department. With reference to fire patrol vehicles, the Court has no knowledge that they are not or may not be privately owned. . . . The policy which exempts private cars from the statutory limitations on speed when used for police purposes equally demands that the same freedom of movement be accorded to private cars when used for the purpose of conveying firemen to a fire. The same legislative purpose to facilitate the early arrival of firemen and fire apparatus at the scene of a fire, which finds expression in requirement that other highway travelers shall give them the right of way … is apparent in the provision now under consideration. The language of the exemption should be construed in such a way as to further the purposes and policy of the act.”
Interpretation of Injury Laws
It is well established that a fireman or other municipal employe who is injured as a result of negligence of another, or failure of the latter to comply with a state law, is entitled to recover damages. However, various Courts have held that when construing a law of this nature all sentences must be interpreted to determine with reasonable certainty the original intention of the framers of the law. If, for instance, when interpreting a state statute it appears that the injury did not result from failure of the person, municipality or company being sued to comply with the law, then the in jured employe is not entitled to recover damages.
For example, in H. E. Culbertson Company vs. Warden, 175 N. E. 205, it was shown that a state law provides;
“Section 7472: A person or corporation, or a conductor of a train of railroad cars, or other agent or servant of a railroad company, who obstructs, unnecessarily, a public road or highway authorized by any law of this state, by permitting a railroad car or locomotive to remain upon or across it for longer than five minutes … or permits timber, lumber, wood or other obstructions to remain upon or across it to the hindrance or inconvenience of travelers, or a person passing along or upon such road or highway, shall be deemed to have violated this section.”
In this case it was disclosed that a municipal employe was seriously injured by a board when the vehicle on which he was riding passed under an overhead railway bridge. It was shown that the injury was caused because a contractor, who was repairing the bridge, had failed to secure the board on the structure.
The employe sued both the railroad company and the contractor for damages and based his suit upon the above mentioned statute.
It is interesting to observe that although the lower Court held the employe entitled to recover damages, the higher Court reversed this verdict and said:
“The trial Court erred in applying section 7472 to this controversy. because it can have no possible relation to a lawful structure temporarily erected in a highway; it being by its terms only applicable to a temporary obstruction to a highway, where a railroad crosses at grade.”
How Damages for Injuries are Estimated
Generally speaking, where the negligence of a city official results in an injury to a municipal employe, the latter is entitled to recover an amount of damages to adequately compensate for loss of the income as a consequence of the injury.
For illustration, in Roads vs. Kelleher, 26 S. W. (2d) 764, it was disclosed that an employe was seriously injured when a heavy weight fell upon his foot, requiring the amputation of two-thirds of his left leg below the knee. The injury necessarily confined him to the hospital for a period of five months at least.
The injured employe was a laborer who earned forty cents an hour and worked eight hours a day. The lower Court held the employe entitled to recover §17,500 damages. An appeal was made to the higher Court on the contention that the judgment was excessive. Nevertheless, the higher Court upheld the lower Court’s decision, saying:
“We infer from the evidence that he earned about $900 a year. . . . Plaintiff was deprived of the power to labor and to earn a living during the rest of his life through the
negligence of defendant. A principal of $15,000. drawing 6 per cent interest, was necessary as the basis for an income of $900 a year. The present value of $15,000, at flfty-two years of age. is about $8.S00. and that income plaintiff is held to have lost. . . . Moreover, the crushing of the foot and the operations to save his leg, as well as the amputation, seemingly were agonising. Under the facts and circumstances of this case, we do not think the verdict was excessive.”
Dismissal of Municipal Employe Held Invalid
Another important point of law is that any order issued by a municipal officer is void and ineffective, if its purpose is intended to delegate authority to an official to positively decide whether or not members of the municipal Fire Department may defend their legal rights.
For instance, in State vs. Barry, 175 N. E. 855, it was shown that a properly authorized official issued an order as follows:
“Kindly see that … no member of the department will be permitted to demand, request or accept anything of value for settling any civil case in which they are involved, or submit any case to the prosecutor or any attorney for settlement unless they receive permission to do so from this office.”
A municipal employe sustained Injuries as a result of collision with a motor bus. Without obtaining permission he filed suit against the motor bus company to recover damages for tlie injury. Soon afterward be was discharged from the department. He filed suit to compel his reinstatement, and at the same time demanded payment of all back salary.
It is interesting to observe that the higher Court held in favor of the municipal employe and stated the following important law:
“However, we do not agree that the rule governed the institution of this action. It was issued in a wise and certainly most commendable effort to eliminate the coercion. . . . It was construed both by the Director of Public Safety and by the Civil Service Commission as forbidding resort to the Courts. If this construction is proper, it makes the order unconstitutional, for it places a superior officer as an intermediary between the Courts and the citizen, deciding whether or not the Court shall receive his suit.”