Farber v. Mut. Life Ins. Co. of New York

• Decision Date: 02 December 1924
• Parties: FARBER v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 250

145 N.E. 535

FARBER

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 2, 1924.

Exceptions from Superior Court, Worcester County; Philip J. O'Connell, Judge.

Action of contract by Rose B. Farber against the Mutual Life Insurance Company of New York, to recover double indemnity on insurance policy for death of insured while riding on rear fender of street car. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

G. A. Drury and F. A. Walker, both of Worcester, for plaintiff.

G. Hoague, of Boston, for defendant.

CROSBY, J.

This is an action upon an insurance policy under which the life of Louis Farber was insured in the sum of $2,000, payable, in case of his death before February 13, 1937, to his wife, the plaintiff. The policy further provided that in consideration of the payment of an additional premium of 20 cents the defendant would pay the sum of $2,000 in addition to the $2,000 provided for in the face of the policy, upon due proof that--

The death of the assured ‘was caused directly by accident while traveling as a passenger on a railway train, a steamship licensed for regular transportation of passengers, a street car or other public conveyance operated by a common carrier, * * * and if such death occurred within 60 days after the accident.’

The insured received injuries resulting in death within 60 days after the accident, in Worcester, when he was struck by a street car that collided with the car on which he was riding on the rear fender. The following rule of the street railway company, in force at the time of the accident, was admitted in evidence:

‘Duties of Motorman, Conductor and other Trainmen, 380.

‘Passengers Riding on Prohibited Parts of the Car.

‘Permit no person to stand or ride elsewhere than in a safe place upon the car. The standing or riding of passengers upon buffer, dashers, fenders, roof or outside of the closed vestibule doors is prohibited.’

It is conceded that the plaintiff is entitled to recover the larger amount if the deceased was injured while traveling as a passenger on a street car within the meaning of the policy.

There was evidence that before the accident the deceased, and other persons, on several occasions had ridden on street cars of the railway company and that while so riding the conductor had collected their fares; that at times the conductor had received fares through the open window at the rear of the cars from persons riding on the fender; that neither the conductor nor any other officer or employee of the company had ever objected, or forbidden persons to ride on the fender; that inspectors in the employ of the company had observed persons so riding and made no objection thereto.

It is the contention of the plaintiff that the evidence warranted a finding the rule above referred to had become a dead letter, that it had been waived and abandoned by the company, and that persons were impliedly invited to ride upon the fender. McDonough v. Metropolitan Railroad, 137 Mass. 210, 213;Sweetland v. Lynn & Boston Railroad, 177 Mass. 574, 579, 59 N. E. 443,51 L. R. A. 783;Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 98, 64 N. E. 726;Walsh v. Boston Elevated Railway, 222 Mass. 275, 110 N. E. 278, Ann. Cas. 1918C, 443.

[1] The first question is, Was the insured a passenger of the street railway company while riding on the fender? As it could have been found that it was a common practice for persons so to ride and to pay their fares to the conductor when so riding, the question was one of fact for the jury. Walsh v. Boston Elevated Railway, supra.

Whether the insured had been accepted as a passenger by the common carrier is different in law from the issue whether the passenger so riding could be found, under the circumstances, to be in the exercise of due care so as to enable him to recover against the carrier, or whether the carrier owed him the duty of due care. Files v. Boston & Albany Railroad, 149 Mass. 204, 21 N. E. 311,14 Am. St. Rep. 411;Garcelon v. Commercial Travellers' Eastern Accident Association, 195 Mass. 531, 81 N. E. 201,10 L. R. A. (N. S.) 961;Daley v. Boston, Revere Beach & Lynn Railroad, 241 Mass. 78, 134 N. E. 376.

[2][3] The construction of a contract in writing is for the court. Creighton v. Elwell, 243 Mass. 580,137 N. W. 737;Gould v. Converse, 246 Mass. 185, 189, 140 N. E. 785. It is to be construed like other written contracts in accordance with the sense and meaning of the words which the parties have used; and if clear and free from ambiguity the words are to be taken and understood in their natural, usual and ordinary sense. The contract...