Anthony v. Mercantile Mut. Acc. Ass'n

• Citation: 38 N.E. 973,162 Mass. 354
• Parties: ANTHONY v. MERCANTILE MUT. ACC. ASS'N.
• Decision Date: 27 November 1894
• Court: United States State Supreme Judicial Court of Massachusetts

162 Mass. 354

38 N.E. 973

ANTHONY v. MERCANTILE MUT. ACC. ASS'N.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1894

COUNSEL

Lincoln & Hood, for plaintiff.

E. & A.E. Avery, for defendant.

OPINION

KNOWLTON J.

The plaintiff claims under a policy of insurance whereby the defendant promised to pay her $5,000 on proof of the death of her husband, William A. Anthony, from "bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the conditions" recited therein. The testimony in regard to the material facts was uncontradicted. William A. Anthony was a passenger on a train on the Colorado & Midland Railroad. He was seen in his usual health in one of the cars of the train late in the evening of September 3 1891, just before it reached Granite, Colo., which was a station at which trains were accustomed to stop. He had a ticket for Denver, a place to which the train was going. The train stopped at Granite to take the mail. The night was dark, and there was no light on the platform at the station. The train started slowly, and when it had gone not more than 30 or 50 feet he was discovered on the ground between the platform and the nearest rail of the track with his legs crushed by the wheels of one of the trucks which had passed over them. He survived about four hours, being unconscious most of the time, and then died from the injury. No witness saw the accident, and nothing more was shown in regard to the cause of it. The policy contains numerous conditions, which immediately follow the words, "provided always," among which are these: "No claim shall be valid under this certificate when the death or injury may have been caused by dueling, fighting, *** or when the death or injury may have happened in consequence of war or invasion, or of riding or driving races, or of any voluntary exposure to unnecessary danger, hazard, or perilous adventure." "Standing, riding, or being upon the platforms of moving railway coaches other than street cars, or riding in any other place not provided for the transportation of passengers, or entering or attempting to enter or leave any public conveyance using steam as motive power while the same is in motion, *** are hazards not contemplated or covered by this certificate," etc.

The only question reserved by the report is whether there was evidence to warrant the submission of the case to the jury. This question may be divided into two branches First, whether the burden of proof is on the defendant, after the plaintiff has shown that the injuries were effected "through external, violent, and accidental means," to show that they resulted from some of the causes specified in the conditions as not within the insurance, or on the plaintiff to show that they did not; secondly, if the burden of proof is on the defendant, ought the judge to have instructed the jury that the burden was sustained, and that their verdict must be for the defendant. The question in regard to the burden of proof has been considered and practically decided in previous cases. Freeman v. Insurance Co., 144 Mass. 572, 12 N.E. 372; Coburn v. Insurance Co., 145 Mass. 226, 13 N.E. 604; Badenfeld v....