Keene v. New England Mutual Accident Ass'n

164 Mass. 170 | Mass. | 1895

Holmes, J.

The rulings asked are disposed of by the former decision in this case. Keene v. New England Mutual Accident Association, 161 Mass. 149. So also are most of the matters excepted to in the charge. The jury were instructed that, if there had been such a universal, uniform, and long continued use by the general public for a crossing of the land where Keene, the deceased, was killed, as to give it the character of a line of travel, and such that it fairly might be inferred to be.known to the railroad company, the deceased would be presumed to have known of the fact, and to be where he was rightfully, and not as a trespasser. If this were an action against the railroad company, and Keene had been upon the track simply as a member of the public, these instructions would be open to the criticism made in Chenery v. Fitchburg Railroad, 160 Mass. 211, 212. See also Wright v. Boston & Albany Railroad, 142 Mass. 296. But the question is with regard to the rights of a passenger to get off the location of the railroad within which he finds himself by right. With regard to that, it already has been decided to be a question for the jury. It is not necessary to consider whether the mode of statement which was adopted was right in its way of reaching the result. The result was right as applied to this case. See also Wheelock v. Boston & Albany Railroad, 105 Mass. 208, 208.

The instructions as to what constituted voluntary exposure to unnecessary danger followed the former decision. Cases as to what would be negligence as between the deceased and the railroad are not in point.

The only question left open by the former decision is whether Keene was “ walking or being on the road-bed ” of a railway, within the meaning of the policy. If he bad been walking along the track longitudinally, he clearly would have been within the clause. Piper v. Mercantile Mutual Accident Association, 161 Mass. 589. Perhaps, if he had been crossing where there was a public way, he would not have been within it. This case is nearer to the line. The words of the policy contain no exception, and in view of the plain purpose of the provision, which is to exclude liability for a well known danger, we are of opinion that the implied exception, if any, does not extend to this case. On this point the exceptions must be sustained, unless the plaintiff consents to a reduction of the judgment to fifteen hundred dollars.

Exceptions sustained.