Freeman v. Travelers' Ins. Co. of Hartford
| Decision Date | 29 June 1887 |
| Citation | 12 N.E. 372,144 Mass. 572 |
| Parties | FREEMAN v. TRAVELERS' INS. CO. OF HARTFORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Action to recover on a policy of accident insurance on the life of John J. Murray, payable to the plaintiff. At the trial in the superior court, before BACON, J., it appeared that Murray was an employe on the Boston, Barre & Gardner Railroad, and was killed by a freight train on that road December 26, 1883. No question was made as to sufficient and timely proof of death. Evidence was presented in support, and in disproof, of the defense set up that the deceased was intoxicated, which was submitted to the jury under instructions not excepted to, and which the verdict makes immaterial, except as the verdict establishes as a fact that he was not intoxicated, and as that fact may bear upon the issue of due care. The plaintiff offered evidence tending to show that the railroad was nearly straight for a long distance from the crossing towards the north, and that the planking on the crossing could be seen by a man standing on the track at a distance of about 90 rods from the crossing, and, if a man was elevated as high as the engineer would be in his cab, he could see said planking for a considerable distance further. There was evidence on the issue that the deceased was not in the exercise of due care for personal safety and protection at the time of the accident, as follows:
Edward Doody testified that he was working on stoves, but was conductor on the said road on the morning of December 26 1883, on the train that struck Murray, that he was on duty in his saloon car, that he knew Murray, and had known him for a year; that the first he knew of the accident was the picking up of Murray just below Davis' crossing, about three-fourths of a mile from Brooks station; that he heard first a whistle for the crossing and then a whistle for brakes; that the first thing he saw after the train stopped was Murray lying behind the train on the right hand side of the track coming towards Worcester; that soon the brakeman, fireman, and engineer came up, and, together with witness, picked Murray up and put him into the saloon car; that Murray's legs appeared to be broken; that the train went on, and witness stayed with him in the saloon car all the way; that he died on the train just a little above Barber's crossing; that he was conscious all the time between the time witness first went to him and the time when he died. On cross-examination, Doody testified: "Murray said that he didn't want me to tell Mike Flanagan his foreman; that he didn't want Mike to know anything about it." On cross-examination, Doody testified that when he first saw Murray it was after the whistle had sounded and the train had stopped; that the latter was lying beside the track, and had on a blue shirt and a dark coat. It had previously been proved that deceased went out that morning from Worcester on a passenger train, and reported at Brooks station to the section foreman, who sent him with his pick and shovel to clear the snow from the rail at crossings, the first crossing being Davis' crossing, a mile and a half south, where, in an hour or more he was killed. There were 10 or 12 inches of old snow on the ground, and there had been a fall of 3 inches of new light snow the preceding night.
A.W Mitchell was called by the defendant, and testified that he was a locomotive engineer, and had run an engine nearly four and a half years; that he was engineer on the freight train that struck Murray; that there was a light snow on the track of about three inches, and the track was slippery; that about 10:30 his train left Brooks station, going south; that Davis' crossing is one-half to one mile from Brooks station, and it is down grade after leaving Brooks station so that the train runs without steam, under control of the brakes, running about 15 miles per hour; that he sounded the whistle at the whistling-post nearest the crossing, and rounding a sharp curve, observed what he thought to be a coat on the snow. On getting closer saw a man as if lying on his face, feet towards the engine, his limbs covered with light snow. The coat did not seem to have much of any snow on it; that he whistled for brakes, and sounded the whistle for the man to get off; that he reversed the engine; that the man did not start, and the fireman applied the tender brake. As the man was struck the clothing caught on the scraper, and threw him one side. One limb might have gone under the front wheel. The clothing held, and kept him from being thrown under and mangled, and drew him along quite a ways, and then threw him out one side; that after he was struck witness went back to him, and heard him say, "Don't tell Mike." On cross-examination, witness testified that, after rounding the curve mentioned, the crossing could not be seen until it was within a distance of 30 rods; that he would not swear that he could not see the crossing by standing on the engine rail at a distance of 80 rods; that when he saw the crossing on the occasion in question he was about 20 rods away, and that as soon as he saw the man he instantly whistled for brakes and reversed the engine.
The plaintiff, for the purpose of showing that the engineer, Mitchell, was reckless, and that he unnecessarily ran over the deceased, called in rebuttal Doody, the conductor, and asked him the following question: "In your opinion how long a distance, as the train was going, would it go before it would stop if the appliances were used for stopping?" Defendant's counsel objected to the witness answering this question, on the ground that he was not qualified on that point, and also objected to the question. The objections were overruled, and Doody, in reply, said, "it depends upon the brake pumps;" and further testified that, according to the force that was on the front end of the train, it ought to have been stopped quicker than it was; and that it should have been stopped in from three to five minutes; that it would go 40 or 50 rods.
At the conclusion of the evidence defendant asked the court to instruct the jury "that there was no sufficient evidence in this case to warrant the jury in finding that the deceased was in the exercise of due diligence for personal safety and protection at the time of the injury, and that therefore the plaintiff cannot recover." This ruling was refused, and that issue was submitted to the jury, the court ruling that such due diligence or due care must be proved by the plaintiff affirmatively. The jury returned a verdict for plaintiff, and defendant alleged exceptions.
W.S.B. Hopkins, for defendant.
It is incumbent on the plaintiff to prove, in order to establish any case of liability on the part of the defendant, that the insured came to his death by "external, violent, and accidental means" while he was in the exercise of due care. DRUMMOND, J., in Tooley v. Railroad, 3 Biss. 399; Morel v. Mississippi Val. Life Ins. Co., 4 Bush, 535; Theobald v. Railroad P. Assur. Co., 10 Exch. 44; Brown v. Railroad P. Assur. Co., 45 Mo. 221; Schneider v. Provident Life Ins. Co., 24 Wis. 28; May, Ins. § 530. See Prentiss v. Boston, 112 Mass. 43, 47; Mayo v. Boston & M.R.R., 104 Mass. 137, 140. And see Hinckley v. Cape Cod R.R., 120 Mass. 257, 262, 263; Crafts v. Boston, 109 Mass. 519; W. ALLEN, J., in O'Connor v. Boston & L.R.R., 135 Mass. 352, 361. Although in Hinckley v. Cape Cod R.R., there was a dissenting opinion, the dissent was not to the proposition that an utter absence of evidence of conduct allows nothing to be inferred for the plaintiff. Though the rule may work to the great misfortune of a plaintiff, it must prevail: "Whether the absence of evidence results from fault, or is only the misfortune of the plaintiff, is immaterial to the decision of the question of law." Crafts v. Boston, 109 Mass. 519, 521. See also, Nelson v. Chicago, R.I. & P.R.R., 38 Iowa, 567. But the case at bar is stronger against the plaintiff than where, all the circumstances being proved, there is an "absence of all appearance of fault;" stronger than the illustration where a man "had not been seen by any one from the time he started from his home until he was found lying on the ground," etc. See Mallory v. Travelers' Ins. Co., 47 N.Y. 52. The position of the deceased was prima facie evidence of negligence. The declarations of the deceased immediately after the accident was evidence tending to show consciousness of negligent conduct on his part; at all events, it was not evidence of due care. The case is distinguishable from Smith v. Boston Gas-Light Co., 129 Mass. 320; Com. v. Boston & L.R.R., 126 Mass. 61; Prentiss v. Boston, 112 Mass. 43. Our contention is not only that Doody, the conductor, had not sufficient skill to pass an intelligent judgment on that concerning which he was asked his opinion, but that the evidence shows that, from his position and duty, he was not acquainted with facts enough to warrant the court in permitting him to testify.
F.P. Goulding and W.H. Atwood, for plaintiff.
The defendant's request for a ruling "that there was no sufficient evidence to warrant the jury in finding that the deceased was in the exercise of due diligence," etc was rightly refused. See 1 Greenl.Ev. (13th Ed.) § 49, note 1, p. 64; Michell v. Williams, 11 Mees. & W. 216, 217. For it is only where there is an entire absence of any facts to authorize the inference that the plaintiff was conducting himself with reasonable prudence and discretion, or the undisputed facts of the case prove actual negligence, that a case like the present should be withdrawn from the consideration of the jury. Fox v. Sackett, 10 Allen, 535; Copley v. New Haven & N. Co., 136 Mass. 6; Reed v. Inhabitants of Deerfield, 8 Allen, 52...
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