Willard v. Masonic Equitable Acc. Ass'n

• Decision Date: 20 October 1897
• Citation: 47 N.E. 1006,169 Mass. 288
• Parties: WILLARD v. MASONIC EQUITABLE ACC. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 288

47 N.E. 1006

WILLARD v. MASONIC EQUITABLE ACC. ASS'N.

Supreme Judicial Court of Massachusetts, Franklin.

October 20, 1897

COUNSEL

Dana Malone, for plaintiff.

Montague & Keyes, for defendant.

OPINION

ALLEN, J.

There was no implied invitation by the railroad company for the plaintiff or other persons to cross the railroad track at that time and place. The track was actually occupied by a freight train, which was in readiness to be moved. An attempt to cross the track between the cars under such circumstances involves a direct peril, in case the train happens to be moved during the time occupied in getting across. The plaintiff knew that the train was liable to be started soon. He saw the engineer and brakeman in their places upon it, in readiness for their work, but he thought they were waiting for orders to go on, or for another train, and that he had time enough to get across. Without any inquiry, he made the attempt simply on his own idea that he would have time enough. This was certainly a risky thing to do, and it was unnecessary, because he might easily have gone round. It was a voluntary exposure to unnecessary danger, within the meaning of the policy. The case is distinguishable from Keene v. Association, 161 Mass. 149, 36 N.E. 891, and is more like Tuttle v. Insurance Co., 134 Mass. 175, though even stronger against the plaintiff than that case was. See, also, Cornish v. Insurance Co., 23 Q.B.Div. 453; Follis v. Association, 94 Iowa, 435, 62 N.W. 807. Exceptions overruled.