Keene v. New England Mut. Acc. Ass'n

• Decision Date: 28 March 1894
• Citation: 161 Mass. 149,36 N.E. 891
• Parties: KEENE v. NEW ENGLAND MUT. ACC. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 149

36 N.E. 891

KEENE

v.NEW ENGLAND MUT. ACC. ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1894.

Exceptions from superior court, Suffolk county; Franklin G. Fessenden, Judge.

Action by Carrie I. Keene, administratrix of the estate of Fred L. Keene, deceased, against the New England Mutual Accident Association, on an accident insurance policy. There was a verdict directed by the court in favor of defendant, and plaintiff excepts. Exceptions sustained.

Plaintiff's intestate was employed in Boston as a salesman in a wholesale leather house, and on the morning of June 4, 1891, went to Brockton, Mass., by cars, arriving there about 9 a.m. He left the cars on the side nearest the station, and, as it was raining, opened his umbrella, passed in front of the engine attached to the train, to the platform No. 2; and as he stepped from platform No. 2 upon the railroad track to the east, in order to cross the track to the street known as “Railroad Avenue” upon the east of the railroad tracks, was struck by the first of two freight cars, which had been kicked to the north from the rear of a train consisting of an engine and several freight cars, which had pulled out to the south from the station at the time of the arrival of the passenger train, and which, at the time the plaintiff was struck by the detached cars, was standing still upon the track, at some distance south. The detached cars were in charge of a brakeman, who was on the top of the car which struck plaintiff's intestate, and this brakeman called out to the plaintiff's intestate, to “look out,” just before he was struck, but not in time to prevent the accident. The jury viewed the premises, and the location of the trains, cars, and engines was pointed out to them before the trial. At the time of the accident the wind was southeast, the passenger engine was blowing off steam, and the plaintiff's intestate was about five feet back from the forward trucks of the passenger engine when struck first by the freight cars.

E.M. Johnson and John W. Keith, for plaintiff.

Ranney & Clark, for defendant.

ALLEN, J.

The defendant insured the deceased “against personal bodily injuries effected *** through external, violent, and accidental means, within the intent and meaning of the provisos and conditions” recited in the policy. The provisos and conditions material to be considered are as follows: “No claim shall be valid under this certificate when the death or injury may have been caused by dueling, fighting, wrestling,” or “may have happened in consequence *** of racing of any description, or of any voluntary exposure to unnecessary danger, hazard, or perilous adventure.” “The certificate holder is required to use all due diligence for personal safety and protection.” “For injuries received while *** walking or being on the roadbed or bridge of any railway, the certificate holder or his beneficiary shall be entitled only to the indemnity or death loss provided in the classification of this association for railway employés insured to cover such risks.”

Death through external, violent, and accidental means having been proved, the burdenof proof was on the defendant to show a voluntary exposure to unnecessary danger, or a want of due diligence. Freeman v. Insurance Co., 144 Mass. 572, 12 N.E. 372;Badenfeld v. Accident Ass'n, 154 Mass. 77, 27 N.E. 769. The question is not the same as would arise in an action against the railroad company to recover damages for the accident which caused the death. In such action, the relation of the deceased to the railroad company would probably be that of a bare licensee, to whom the railroad company owed no duty except to abstain from reckless and wanton conduct. Redigan v. Railroad Co., 155 Mass. 44, 28 N.E. 1133, and cases there cited. Moreover, there may have been such a want of positive care on his part, with reference to approaching cars, as would prevent a recovery; the burden being upon the plaintiff in such action to prove due care affirmatively. In the present action the burden of proof is different, and the questions of due diligence and of voluntary exposure to unnecessary danger arise, not upon general principles of the law of negligence, but upon the construction of the contract of insurance against accidents. Clearly, a contract of indemnity against accidentsshould be construed with more liberality to the assured than the rules of common law if the same person seeks under them to put the responsibility for his accident upon another. Looking, then, at the policy with reference to the...