169 Mass. 288 | Mass. | 1897
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 brahemen 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. New England Accident Association, 161 Mass. 149, and is more like Tuttle v. Travellers' Ins. Co. 134 Mass. 175, though even stronger against the plaintiff than that case was. See also Cornish v. Accident Ins. Co. 23 Q. B. D. 453; Follis v. United States Accident Association, 94 Iowa, 435.
Exceptions overruled.
