Tuttle v. Travellers' Ins. Co.

• Decision Date: 05 January 1883
• Citation: 134 Mass. 175
• Parties: Ann O. Tuttle v. Travellers' Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 175

Ann O. Tuttle v. Travellers' Insurance Company

Supreme Court of Massachusetts

January 5, 1883

Argued November 15, 1882

Middlesex. Contract upon a policy of insurance against accident, issued by the defendant corporation upon the life of Stephen Tuttle, and made payable to the plaintiff, his wife.

At the trial in this court, before Devens, J., the evidence showed that, about ten o'clock in the evening of March 13, 1879 Tuttle was killed by being struck by a railroad train, while running along the tracks in front of it, for the purpose of getting on a train approaching in an opposite direction on a parallel track. The judge, at the defendant's request ruled that the action could not be maintained; directed the jury to return a verdict for the defendant; and reported the case for the consideration of the full court. If the ruling was correct, judgment was to be entered on the verdict otherwise, a new trial was to be had. The material provisions of the policy appear in the opinion.

Judgment on the verdict.

G. A. A. Pevey, for the plaintiff.

S. Lincoln, for the defendant.

C. Allen, J. W. Allen & Holmes, JJ., absent.

OPINION

C. Allen, J.

The policy provides, among other things, that no claim shall be made under it "when the death or injury may have happened in consequence of exposure to any obvious or unnecessary danger." It is also made subject to the condition, that "the party insured is required to use all due diligence for personal safety and protection." Both of these provisions were violated by the act of the deceased in going upon and along the track of the railroad, under the circumstances stated in the report. Wright v. Boston & Maine Railroad, 129 Mass. 440, 443. No two cases are precisely alike in their facts; and what constitutes due care must depend upon the facts of each case. But the conduct of the deceased was such as, in the words of Mr. Justice Colt, is "condemned by the general knowledge and experience of all prudent men, and is conclusive on the question of due care." The danger was obvious, the exposure to it unnecessary, the want of due diligence clear; and the death of the insured occurred in consequence thereof. See also Wills v. Lynn & Boston Railroad, 129 Mass. 351; Johnson v. Boston & Maine Railroad, 125 Mass. 75; Allyn v. Boston & Albany Railroad, 105 Mass. 77; Cordell v. New York Central & Hudson River Railroad, 75 N.Y. 330; 70 N.Y. 119; 64 N.Y. 535; Baxter v. Troy & Boston Railroad, 41 N.Y. 502; McCarty v. Delaware & Hudson Canal, 17 Hun 74.

The plaintiff contends that it was not the exposure or negligence of the assured which caused his death, but the coming upon him of the locomotive engine, the bell or whistle of which may not have sounded; that this was a new force or power which intervened, of itself sufficient to stand as the cause of the misfortune; that it was for the jury to determine whether or not the railroad corporation was negligent; and that, if so, the negligence of the assured, if it existed was too remote to defeat the policy. Insurance Co. v. Tweed, 74 U.S. 44, 7 Wall. 44, 52, 19 L.Ed. 65. Milwaukee & St. Paul Railway v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256. Scheffer v. Railroad Co. 105 U.S. 249, 252, 26 L.Ed. 1070. But, without speculating as to possible cases, we do not think that the doctrine relied on is applicable to this case. If a...