84 A. 50 | N.H. | 1912
The question here is the meaning of the term "road-bed of any railway." The ruling was that this included only the space covered by the rails and ties, even though this be less than that swept by a passing car or locomotive. From an engineering standpoint, the road-bed includes all that is necessary to support the superstructure. Webster's Int. Dict.; Cent. Dict. It is manifest that this would ordinarily be much more than the mere width of such superstructure. But the question here is not one of technical terms. The expression was not used in this contract by engineers or in view of scientific undertakings. It was a part of the agreement between the insurer and the insured, whereby the former limited the risks it insured against. The test is: what did the phrase mean to these parties when so used?
The risk intended to be excepted from those insured against was that of being struck by moving cars or engines. This being so, it follows that in this contract the phrase "the road-bed of any railway" *476
means all that part of the right of way which may be swept by the moving rolling-stock. The question has been fully considered in another jurisdiction, in an opinion reviewing the authorities and elaborating the arguments here briefly summarized. McClure v. Association,
The fact that other people used the road-bed as the decedent used it is not material here. The question is one of contract between insurer and insured, and not of tort liability as between the injured party and those operating the moving trains. Piper v. Association,
Exception sustained.
All concurred.
