39 F. 321 (D.Colo. 1889), Marx v. Travelers' Ins. Co.

Citation:39 F. 321
Case Date:July 24, 1889
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 321

39 F. 321 (D.Colo. 1889)




United States Circuit Court, D. Colorado.

July 24, 1889

Patterson & Thomas, for plaintiff.

Markham & Dillon, for defendant.


Plaintiff is the widow of Sigmund Marx, to whom defendant issued an accident policy under date of August 19, 1887, for $5,000. Marx came to his death by falling from a platform of a railroad car on which he was a passenger proceeding from Denver to Central City. At the trial it became a question whether in riding upon the platform of a car there was 'voluntary exposure to unnecessary danger,' or a violation of a rule of the railroad company within the meaning of certain conditions indorsed on the policy. There was testimony to show that in traveling upon cars deceased was at times affected with nausea, and found it necessary to go to the open air for relief. The day of the accident was extremely hot, and other passengers had taken position on the platform on that account. When last seen on the platform deceased was sitting with his feet over the end in a position of some danger in case of collision, but not especially so as to falling from the platform. It may be said, however, that he was riding on the platform, and that the accident would not have occurred if he had kept inside the car. That deceased was in a dangerous position on the platform, as distinguished from the body of the car, in which as a passenger, he was entitled to ride, is clear enough; but whether in going on the platform there was voluntary exposure to unnecessary danger cannot be ascertained except with knowledge of all the circumstances which influenced his conduct. If he was overcome by the heat of the car, or affected with nausea, which impelled him to seek the open air, it

Page 322

cannot be said that there was voluntary exposure, or that the danger was unnecessarily incurred; and so the jury was advised to consider whether under all the circumstances the case was within that condition of the policy.

As to the condition exempting defendant from liability in case of death from violating a rule of a corporation, it is said that deceased was forbidden to ride on the platform by a rule of the railroad company, which was inscribed on a metal plate on the door of the car. Whether this can be taken to be a rule of a corporation, or what shall be a rule of a railroad corporation within the meaning of the...

To continue reading