(dissenting).
The extreme extent of the blanket exemption granted not merely municipalities, but all minor air raid officials, under the interpretation here given to the New York State War Emergency Act, § 40, I think should give us pause before we finally conclude that such must have been the necessary legislative intention. Here the court’s instructions to the jury in substance required it to exonerate this police officer, and the town which employed him, upon a showing of his subjective intent to obey a directive to report promptly at his police headquarters on warning of an air raid drill — this notwithstanding that the evidence, reasonably construed, showed that he was driving his own motor vehicle at night on an inland main highway at such a rate of speed as to run past warning signals and crash into a company of soldiers trapped there by reason of the orders under which they were marching, killing one and severely injuring five others. Of course, the evidence as to the operation of the vehicle was in dispute; but the devastation wrought and the mute evidence from the damaged car itself lend credence to an estimate of a speed of 50 or 60 miles an hour given by Sergeant Powell, one of the plaintiffs. In short the statute, as thus construed and applied, excuses extreme recklessness, when compliance with the police order of a superior is asserted. True, even though they now seem rather exaggerated after the end of the war with Germany, we are not entitled to discount all former fears of actual air raids, or the extensive steps then taken to repel invasion by air. But we can doubt whether the New York legislature intended to go so far as this to excuse recklessness in connection with air raid drills, wherever occurring in the State, or whether the orders of the State War Council — of vital importance in this case as I view it — permitted such driving nearly two years after war had begun and when every one (this police officer along with the rest of us) knew the odds were overwhelming that this was only a practice drill, not an enemy attack.
Plaintiffs suggest several possibilities for interpretation of the Act, which I do not wish to reject definitively in stressing, as I shall do, what seems to me the least favorable interpretation — so far as they are concerned — to be given it. I may add that there were certain disturbing features of the trial — the charge on contributory negligence, the argument of counsel — which I shall pass, since it is obvious that if the construction here given the statute stands, a new trial will avail the plaintiffs nothing. I shall limit my remarks to what I think has been overlooked, namely, that the State War Council’s Order No. 17 — authorized by § 7 of the Emergency Act — is a valid and controlling part of any directive for the execution of which in good faith a defendant claims immunity. True, the court referred to this order, quite properly, on the issue of negligence; but then it allowed no effect whatsoever to the order on the issue of good faith — the more important and overriding issue as the case developed. But Friedman must be held under orders not merely to get from the drugstore in Nyack to the police headquarters in Sparkhill, but to do so when driving as specified in the order. This sets a speed limit of 35 miles an hour; in addition, it has an exemption for military and naval driving, which seems definitely not applicable here, and one for driving in an emergency for public safety, which by generous interpretation perhaps may be. Nevertheless, and in any event, the vehicle must not be driven “at a rate of *788speed in excess of that which is reasonable under conditions prevailing at such time.” Thus the jury should have been told explicitly that the excuse of good faith could operate only when the officer intended to obey his order by driving as thus reasonably stated and required. Instead plaintiffs were required to prove the absence of good faith “in carrying out, complying with or attempting to comply with the law or duly promulgated rule, regulation or order requiring him to report.”
The proper construction of the statute was brought home to the court, since it was the most stressed legal point in the case; and three requests to charge in particular asked for a statement that Friedman had no “right and privilege” to drive without regard to speed and the safety of persons on , the highway, or in a dangerous, reckless, or wanton manner, or at a rate of speed in excess of that which was reasonable and proper under the conditions, and further that nothing contained in the direction to him to report promptly to the Sparkhill headquarters granted him such right and privilege. True, on the theory here stated these requests did not express the full rule of law, since even if he lacked the privilege his good faith might excuse him. But I think they, as well as the general arguments as to the 'statute, put the court on warning of the necessary interpretation; and in a case of this novel importance and serious consequence, a meticulously framed exegesis of the law was not to be required of plaintiffs for the preservation of their appellate rights. The court made thoroughly clear, its different interpretation of the statute, both in its charge and later in its opinion denying the motion to set aside the verdict. D.C.S.D.N.Y., 57 F.Supp. 52.
No other case goes as far as this in extending the statutory exemption. Our previous Gaglio case, cited in the opinion, supra, was one not of reckless conduct during an air raid drill, but of compliance by the elevated railway with normal regulations of the black-out period. The state case of Lofaro v. Bee Cab Corporation, 180 Misc. 756, 43 N.Y.S.2d 737, quite properly and pointedly suggests that the statute does not provide a blanket immunity from liability to all motorists using public highways at night in accordance with wartime regulations, a suggestion repeated in the advice that insurance coverage was needed for a state military ambulance. Aug. 29, 1944, Ops. N. Y. Att’y Gen. The case of Jones v. Gray, cited in the opinion, supra, too shows that an air raid warden may be held for collision and, by its contrast, perhaps the more emphasizes the dangers of a rule allowing a living defendant’s statement of his own subjective intent so extensive a scope as here. For in that case the air raid warden was deceased, and the court allowed the jury to infer absence of good faith from the circumstances there present. Here the circumstances certainly tended to show an absence of good faith on the part of Friedman in intending to comply with the order to drive at a speed reasonable under the prevailing conditions, and that issue should not have been removed from the jury.