195 Mass. 531 (1907), Garcelon v. Commercial Travelers' Eastern Acc. Ass'n

Citation:195 Mass. 531, 81 N.E. 201
Opinion Judge:SHELDON, J.
Party Name:GARCELON v. COMMERCIAL TRAVELERS' EASTERN ACCIDENT ASS'N.
Attorney:Boyd B. Jones and Frederick P. Cabot, for plaintiff. William F. Merritt and N. Thomas Merritt, Jr., for defendant.
Case Date:May 15, 1907
Court:Supreme Judicial Court of Massachusetts
 
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Page 531

195 Mass. 531 (1907)

81 N.E. 201

GARCELON

v.

COMMERCIAL TRAVELERS' EASTERN ACCIDENT ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1907

[81 N.E. 202]

COUNSEL

Boyd B. Jones and Frederick

Page 533

P. Cabot, for plaintiff.

William F. Merritt and N. Thomas Merritt, Jr., for defendant.

OPINION

SHELDON, J.

There was at least evidence for the jury that the plaintiff in the loss of his arm suffered a disability caused by external, violent, and accidental means within the meaning of the certificate issued to him by the defendant. He complied with all the requirements of the contract as to notice of injury and proof of claim; and no question is now made of his right to recover in this action, unless one of the defenses set up is shown as matter of law to be fatal to the maintenance of his claim.

By the terms of the certificate no indemnity is to be paid to any one for an injury caused wholly or in part, directly or indirectly, by voluntary exposure to unnecessary danger, or for any injury which he might have averted or prevented by the exercise of ordinary care, prudence and foresight, or to which his own

Page 534

negligence should have contributed. The circumstances attending the injury are not in dispute. The plaintiff was a commercial traveler and desired to go by a freight train from one town in Nebraska to another. He arrived seasonably at the ranroad station, found the freight train there, and put his baggage in the caboose which was the last car of the train. Seeing that the train was not ready to start, he got off the caboose and went along the street a short distance away from the train, and was then returning toward the train when it suddenly started. Believing that the train was proceeding on its journey he ran up to it, and, while it was in motion, started at a point in the street to climb up the iron ladder upon the side of one of the freight cars, intending to reach the top of that car and, by walking upon the top of it and the following cars while the train was in motion, to reach the caboose. As he grasped one of the rounds of that ladder, the train, which was still in motion, gave a sudden and violent jerk, and he was thrown to the ground in such a manner that his left hand and arm extended over one rail of the track and the car wheel passed over it and crushed it, necessitating its amputation.

Under these circumstances, is it to be said as matter of law either that his conduct was a voluntary exposure to unnecessary danger or that he might have averted or prevented the injury by the exercise of ordinary care, prudence and foresight, or that his own negligence contributed to the injury? If so, the verdict in favor of the defendant was rightly ordered.

It is to be observed that the burden of proof upon these propositions was not, as in ordinary actions for personal injuries, upon the plaintiff to prove his due care, but upon the defendant to show that there was either a voluntary exposure to unnecessary danger or a lack of due diligence. Noyes v. Commercial Travelers' Eastern Accident Association, 190 Mass. 171, 183, 76 N.E. 665, and cases there cited; Anthony v. Mercantile Accident Association, 162 Mass. 354, 38...

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