41 Minn. 231 | Minn. | 1889
This plaintiff is1 the widow of one Edward A. Hull, who was killed under the circumstances to be hereafter stated. He had entered into a contract with the defendant, by the terms of which
The only condition of the-contraet to which it will be necessary to particularly refer is this: “The member herein named is required to use due diligence for personal safety and protection. Standing, being, or riding upon the platform of moving railway coaches, (other than street-cars,) or riding in any other place not provided for the transportation of passengers, or entering or attempting to enter or leave any public conveyance using steam a3 the motive power, while the same is in motion, or walking or being on the road-bed or bridge of any railway, are hazards not contemplated or covered by this certificate, and no sum shall be paid for loss of life or disability in consequence of such exposure happening to any person other than a member who is an employe on the railway on which, in the performance of his duty, the said injury shall have been sustained; but any person shall be permitted to travel for health, recreation, or business, as á passenger, in the usual manner, by any private or public conveyance, without prejudice.” The case made by the plaintiff may be thus stated: The deceased was a tin and copper-smith and pipe-fitter, employed as such in the car-shops of the Northern Pacific Railroad, four or five miles from the railway depot in St. Paul. The railroad company daily carried its shop employes from the city to these shops and back again, by a train used for that purpose. On the evening when this accident occurred, the shop-hands, with one Barber, the master car-builder of that road, left the shop in their train for the city. The track being obstructed by a wreck at a certain point, they left their train, and Barber took a number of the men, including the deceased, into a coach of an empty train, which was about to run from the car-yard where such trains were made up to the Union depot, in the city, to receive passengers for its westward trip over the
It is impossible to avoid the conclusion which led the trial court to •dismiss this action. The case upon its face conclusively shows that •the conduct of the assured, to which the accident must be direetlv at
The general provision at the end of the paragraph, the whole of which we have before recited, cannot be construed as modifying this-particular agreement as to the specified conditions and risks to which it is declared that the insurance shall not extend; and so, although-it be considered that the assured occupied the relation to the railroad company of a passenger, there could be no recovery. Nor would the-case have justified a recovery by force of the clause excepting from the conditions before named “an employe on the railway on which,, in the performance of his duty, the said injury shall have been sustained.” Even if the assured can be deemed to have been, in any proper sense, an employe of the railroad company at this particular time, his acts here in question were not done, nor the consequent injury suffered, “in the performance of his duty” as an employe of th&