Garcelon v. Commercial Travelers' Eastern Acc. Ass'n

• Decision Date: 15 May 1907
• Citation: Garcelon v. Commercial Travelers' Eastern Acc. Ass'n, 195 Mass. 531, 81 N. E. 201 (Mass. 1907)
• Parties: GARCELON v. COMMERCIAL TRAVELERS' EASTERN ACCIDENT ASS'N.
• Court: Supreme Judicial Court of Massachusetts

195 Mass. 531

81 N.E. 201

GARCELON v. COMMERCIAL TRAVELERS' EASTERN ACCIDENT ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1907

COUNSEL

Boyd B Jones and Frederick 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 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 N.E. 973, 26 L. R. A. 406, 44 Am. St. Rep. 367.The questions here, however, do not arise upon the testimony of witnesses, and the statement of the court in Anthony v. Mercantile Accident Association,162 Mass. 354, 357, 38 N.E. 973, 26L. R. A. 406, 44 Am. St. Rep. 367, that where a party has the burden of proving a fact by the testimony of witnesses the jury cannot often be required by the court to say that the fact is proved, does not apply.Here the facts are agreed; and, as stated in the case last cited, the issue is whether they will permit any other inference than that which is contended for by the defendant.

In our opinion it is impossible to say that his negligence did not contribute to the happening of the injury.He voluntarily attempted to board a moving train by climbing up the iron ladder on the side of a freight car.The danger of this was manifest, that he would be shaken off by the jerks of the train; and this happened.He was injured by the very risk that he chose to run.The case is much like Willard v. Masonic Accident Association,169 Mass. 288, 47 N.E. 1006, 61 Am. St. Rep. 285;Small v. Travelers' Protective Association,118 Ga. 900, 45 S.E. 706, 63 L. R. A. 510, and Alter v. Union Casualty Co.,108 Mo.App. 169, 83 S.W. 276.It is governed by the same principles as Glass v. Masons' Fraternal Accident Association (C. C.)112 F. 495, Smith v. Preferred Mutual Accident Association,104 Mich. 634, 62 N.W. 990, Follis v. United States Accident Association,94 Iowa, 435, 62 N.W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408, andCornish v. Accident Ins. Co.,23 Q. B. D. 453.It is a much stronger case for the defendant than Overbeck v. Travelers' Ins. Co.,94 Mo.App. 453, 68 S.W. 236, which perhaps goes farther than we should be disposed to follow.As in Tuttle v. Travelers' Ins. Co.,134 Mass. 176, 45 Am. Rep. 316, this plaintiff voluntarily placed himself in a position where he was exposed to an obvious danger; the precise injury happened to him which there was reason to fear; and it cannot be said that the language of the policy was not intended and understood to be applicable to such a case.

There is nothing to show that the injury to the plaintiff was due to any negligence of the servants of the railroad company.The jerk was sudden and violent; but it does not appear to have been unusual or unnecessary, much less negligent or wrongful.Weinschenk v. N. Y., N.H. & H. R. R.,190 Mass. 250, 76 N.E. 662.Freight trains are not expected to be run with freedom from jerks or jolts.

Nor do we find anything in the situation of the plaintiff which exempts him from the imputation of negligence.He desired to take this train; but he had no right to take it negligently at the risk of the defendant.It was by his own voluntary action that he had left it when he was safely in the caboose.His desire to save time by getting this train cannot excuse him.There was a similar desire to save time in Glass v. Masons' Fraternal Accident Association (C. C.)112 F. 495, Small v. Travelers' Protective Association,118 Ga. 900, 45 S.E. 706, 63 L. R. A. 510, and Alter v. Union Casualty Co.,108 Mo.App. 169, 83 S.W. 276.Nor is the fact that the plaintiff had repeatedly before committed similar acts of negligence, of any assistance to him.In this respect the case is like Smith v. AEtna Life Ins. Co.,185 Mass. 74, 69 N.E. 1059, 64 L. R. A. 117, 102 Am. St. Rep. 326, Weinschenk v. AEtna Life Ins. Co.,183 Mass. 312, 67 N.E. 242, Piper v. Mercantile Mutual Accident Association,161 Mass. 589, 37 N.E. 759, andAlter v. Union Casualty Co.,108 Mo.App. 169, 83 S.W. 276.

The fact that commercial travelers in Nebraska and the neighboring states are accustomed to take the same risks that the plaintiff took cannot help him.That the plaintiff was a commercial traveler in Nebraska when the defendant accepted him as a member does not...