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long. curving, very dark and narrow, and while in such tunnel was struck by a train and so injured that he soon died. There was no material evidence to show how he came to be struck. Held that, conceding that deceased was put off at a dangerous place between the two tunnels, he had passed such danger and reached a place of safety, and the proximate cause of his death was, not such negligence of the conductor, but his own voluntary act in turning back, for which defendant could not be held liable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, $ 1245.]

In Error to the Circuit Court of the United States for the Eastern District of Tennessee.

A. G. Foster, the plaintiff's intestate, was run over and killed by a railway train operated by the servants of the defendant in error. The accident took place in a long, narrow, and dark tunnel, being tunnel No. 26, between Oakdale and Harriman Junction, Tenn. The deceased bought a ticket at Charleston, W. Va., from the Chesapeake & Ohio Railway Company, for Knoxville, Tenn.; one coupon calling for a passage over the Chesapeake & Ohio Railway Company to Lexington, Ky., another for a passage over the lines of the defendant railway company from Lexington to Harriman Junction, Tenn., and a third for a passage over the Southern Railway from Harriman to Knoxville. Harriman was the junction point of the railroads; but by arrangement the latter ran its trains over the rails of the first-named company to Oakdale, four miles north of Harriman, for the purpose of there exchanging passengers. One of defendant's daily passenger trains did not stop at Harriman at all, while the other did. The deceased, by mistake, took that train at Lexington which did not stop at Harriman. He was advised of this, and told to get off at Oakdale, where he could take a Southern train which would take him to Knoxville upon the coupon which called for that city. On reaching Oakdale deceased got off according to instructions given him; but instead of waiting for and taking the Southern train, which he had been told would follow defendant's train out of Oakdale, he for some unexplained reason got back upon defendant's train. He was discovered very shortly after leaving Oakdale, and told that he was on the wrong train, and that he could, by hurrying, get back to the platform and catch the Knoxville train before it should pull out. The train was at once stopped, and deceased put off at a point just about one-half mile south of the Oakdale platform, and at a point on defendant's line between two tunnels, one known as "Tunnel No. 25" and the other as “No. 26.” Tunnel No. 25 is a straight tunnel, about 200 feet in length, and open and light enough to see through. Its southern portal was seme 200 feet north of the point where deceased left the train, and its northern portal is 1,200 to 1.500 feet from the Oakdale station. Tunnel No. 26 began about 1,000 feet south of the point of ejection, and was some 1,600 feet long, curving, and very dark and narrow. Deceased started to walk back to Oakdale. He reached and safely passed through tunnel No. 25, and reached a point some 200 or 300 feet north of its northern portal, and was in plain sight of the Oakdale station, where the train he wanted was standing. There he met a Mr. Case, who lived at Oakdale, and stopped and had some conversation with him. While talking to Case the train he wanted to catch was observed to be moving, and Case told him he had missed his train. made some inquiries about trains out of Oakdale and Harriman, and hotels at each point. He was also told that it was about four miles to Harriman, and that Harriman was in just the opposite direction to Oakdale. Deceased then turned back and started down the track toward Harriman. While going through tunnel No. 26 he was struck and sustained injuries from which he soon died. There was no evidence, of material character, to show how he came to be struck. The tunnel is so dark and low and curving that smoke accumulates ahead of an engine going south in such a way as to prevent a headlight penetrating the darkness more than a few feet. There was evidence of compliance with the provisions of the Tennessee statute, in respect to the precautions to be observed in running trains, by the only two trains which could possibly have collided with him. Foster alighted from defendant's

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train about 4:15 o'clock p. m. and was found in tunnel No. 26 between 4:30 o'clock and 5 the same afternoon; the day being December 7th. At the close of all of the evidence, the jury was instructed to find for the defendant.

Jerome Templeton, for plaintiff in error.
T. A. Wright and Edward Colston, for defendant in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

After making the foregoing statement of the facts, the opinion of the court was delivered by LURTON, Circuit Judge.

It cannot be said that there was not evidence from which the jury might have found that the deceased was put off at a dangerous place, from which he could not reach a place of safety without some risk. Neither was the evidence all one way as to whether he got off voluntarily or not at that place. In view of this state of the evidence, the trial judge announced that upon the matter of negligence there was a question for the jury, and based his instructions to find for the defendant in error wholly upon the ground that any negligence in putting him off when and where it did was not, as matter of law, the proximate cause of his death. In this conclusion we concur. The deceased wished to connect with a train which would carry him to Knoxville. There is no disputing the fact that he knew he had to make his connection at Oakdale, and that the train he had taken would not stop at Harriman Junction. He got off at Oakdale to do this thing. For some unexplained reason he got back upon the train he alighted from. Possibly this was due to some confusion of mind, for he was awakened from sleep to get off there. However, the fact is that after being fully advised he got off at Oakdale and then got back on again. The conductor discovered him very soon after leaving Oakdale, and told him plainly he had time, if he would hurry, to get back to the platform and catch the train, which would in ten minutes follow his own train.

Now, assuming that he did not of choice alight at this place because it

him a good chance to get back and catch the right train, but that he left only because the conductor put him off as a passenger upon a wrong train, it is not deniable that he was put off with the direction and in the reasonable expectation that he would go back to Oakdale, and that, if he did not delay, he would catch his train and retrieve his mistake. Contrary to his own expressed purpose and to the explicit direction of the railway conductor as to the direction he should take to extricate himself from the place, he dallied along until the train he was intent on catching had pulled out. If he had then gone to Oakdale, he would have there found that there was no passenger train, from either Oakdale or Harriman Junction, by which he might go to Knoxville, until morning. But if he preferred to stay at Harriman Junction, though it was a place without accommodations, in order to take a chance of getting into Knoxville on a freight train, he would have found at Oakdale that an accommodation train would leave for Harriman within a few minutes. But, losing his chance to catch the train he should have taken, he turned his back upon Oakdale, its hotel and station being in full sight, and set off to walk down the track to Harriman Junction, four miles away. This he doubtless did upon some notion that he might have there a chance for a train to Knoxville which he would not have at Oakdale. Possibly he did this upon advice or information from Case. But Case was a stranger to the defendant in error, though he had once been in their employment. When he made this change in his plans, deceased had then extricated himself from any particular dangers incident to the place of his ejection from the train, and might have made his way safely to Oakdale in ample time to have taken the local train for Harriman, if, for any reason, he should prefer to go there.

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The only legal liability of the defendant company in this action is for damages resulting from being put off of its train at a dangerous place. But when he changed his purpose of going to Oakdale he had extricated himself from that dangerous place and was that moment as safe as if he had there been put off. Being in plain sight of the Oakdale station and the principal Oakdale hotel, and very near to paths alongside of the tracks which would have led him safely to the railway station, he turned his back upon Oakdale, returned to the alleged dangerous place from which he had made his way, and then, in the face of the ominous appearance and warning notices at the portal of tunnel No. 26, undertook to go through that gloomy passage under the mountain. This voluntary return to the dangerous place from which he had safely escaped, and his voluntary effort to go through tunnel No. 26, whether superinduced by information from Case or not, is of no legal importance, as Case was a stranger, was an act of folly which could not have been reasonably anticipated, and was itself an intervening and proximate cause of his death which ensued. A doer is responsible for the results which should be anticipated as the natural consequences of the wrong, but not for those which ensue from some line of conduct by the injured person, or unforeseen consequences which might not be reasonably anticipated. The relation of the defendant's original negligence to the collision which occurred in tunnel No. 26 was too remote to be regarded as the proximate cause of his death. Milwaukee R. R. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256; Scheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070; Butts v. Cleveland, C., C. & St. L. R. R. Co., 110 Fed. 329, 330, 49 C. C. A. 69; Jarnagin v. Travelers' Protective Ass'n, 133 Fed. 892, 895, 66 C. C. A. 622, 68 L. R. A. 499; Jackson v. Railroad Co., 13 Lea (Tenn.) 491, 49 Am. Rep. 663; Railroad v. Fleming, 14 Lea (Tenn.) 128; Hamilton v. Railroad Co., 183 Pa. 638, 38 Atl. 1085; Gaukler v. Detroit Ry. Co., 130 Mich. 666, 90 N. W. 660.

The case of Washington, etc., Street Ry. Co. v. Hickey, 166 U. S. 521, 17 Sup. Ct. 661, 41 L. Ed. 1101, has been cited and pressed upon us as if it established some new rule in respect to what constitutes a proximate cause of negligence. This is a misapprehension of the case. In that case counsel sought to separate the cause of the accident into two distinct causes, one of which they claimed was remote and the other proximate. The court, upon the peculiar facts of the case, said:

"The two so-called negligent acts were in fact united in producing the result, and they made one cause of concurring negligence on the part of both companies. They were in point of time substantially simultaneous acts and parts of one whole transaction, and it would be improper to attempt a separation in the manner asked for by the counsel for the horse car company."

A wrong

Counsel have suggested that there might be a liability for the action of the signal man at the tower, between the two tunnels, in permitting north-bound trains to enter tunnel No. 26 while the deceased was in that tunnel. The pleadings raise no such question, nor does the evidence show the signal man to have had any knowledge of deceased's presence in the tunnel when he signaled trains bound north that the track was clear.

Judgment affirmed.

NATIONAL ASS'N OF RY. POSTAL CLERKS v. SCOTT.

(Circuit Court of Appeals, Second Circuit. May 30, 1907.)

No. 270.

1. INSURANCE-ACTION ON ACCIDENT POLICY-BURDEN AND MEASURE OF PROOF.

To warrant a recovery on an accident policy insuring against death only when it results alone from an accidental injury, the plaintiff must establish two fundamental propositions: First, that there was an accidental injury; and, second, that it alone caused the death.

[Eil. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $

1721.] 2. SAME-PROOF OF ACCIDENTAL INJURY-SUFFICIENCY OF EVIDENCE.

In an action to recover for the death of an insured under an accident policy or certificate which provided that the insurer should be liable for death only in case it resulted alone from bodily injuries received through external, violent, and accidental means, the plaintiff was not entitled to recover where the sole evidence relating to the receipt of any accidental injury by the deceased was testimony showing that some three months prior to his death there was a discolored spot on one of his shins, several inches in extent, which might have been caused by a bruise or an abrasion.

[Ed. Note.For cases in point, see Cent. Dig. vol. 28, Insurance, s

1721.] 3. TRIAL-DIRECTION OF VERDICT-INSUFFICIENCY OF EVIDENCE.

Under the rule of the federal courts, a court should direct a verdict where the evidence produced by the party on whom rests the burden of proof is insufficient to sustain a verdict in his favor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, $$ 376380.]

In Error to the Circuit Court of the United States for the Western District of New York.

On writ of error to the Circuit Court for the Western District of New York to review a judgment entered upon the verdict of a jury in favor of the plaintiff for $3,420.40, upon a certificate of insurance for $3,000, issued by the defendant to Winfield L. Scott for the benefit of the plaintiff, who was his wife.

Edward P. White, for plaintiff in error.
Carey D. Davie, for defendant in error.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. The certificate issued to Scott provides that if, during its continuance, he shall receive bodily injuries "through

*

external, violent and accidental means" and "if death shall result from such injuries alone within one hundred and twenty days the association will pay not to exceed $3,000 * * to Mary A. Scott, his wife.”

The complaint alleges that on or about November 1, 1902, at the village of Cuba “and while the said Winfield L. Scott was actually engaged in the performance of his duties as a railway postal clerk he received severe injuries by accidental, external and violent means, which injuries received as aforesaid caused the death of said Winfield L. Scott on the 25th day of January, 1903; that such injury, received as aforesaid, was entirely accidental, and that the same was the cause of the death of said Winfield L. Scott, and that such death occurred within the period of one hundred and twenty days after the occurrence of such injury.”

This allegation is denied by the answer, the defendant alleging that death resulted from natural causes.

At the close of the testimony the court was asked to direct a verdict for the defendant on the ground that the plaintiff had failed to prove a case of death from accidental causes. The court was at first disposed to grant the motion, saying:

"My impression is that there is no cvidence here of accidental death. I think I must ask you to convince me that this death was caused by one of these reasons specified in the policy and the constitution of the order."

Subsequently, however, he became convinced that there was "some evidence tending to show that prior to November 1, 1902, the decedent was a strong healthy man not afflicted with any of these diseases with which he was subsequently afflicted,” and concluded to submit the case to the jury.

The principal question litigated was this: Did the assured receive on November 1, 1902, an accidental injury, and, if so, did death result from this injury alone?

In approaching the consideration of this question it is well to bear in mind that the law places upon the plaintiff the burden of establishing two fundamental propositions: First, that there was an accidental injury; and, second, that it alone caused the death of Scott.

The evidence is overwhelmingly to the effect that prior to November, 1902, Scott was far from well; he had been reduced in salary and placed on the short run between Salamanca and Hornellsville, instead of the long one between Salamanca and Jersey City. During the seven years prior to his death he was frequently off duty on account of sickness and wrote to the chief clerk explaining the cause of his absence and the nature of his illness, as shown by certificates of physicians inclosed. Thus, from January 1 to March 1, 1900, Dr. Lattin certified that he was suffering from "albuminuria,” which incapacitated him from attending to duty; from April 30 to May 31, 1902, Dr. Wilcox certified that he was unable to attend to his duties because of an operation for "double hernia"; from June 27 to July 5, 1902, he was treated by Dr. Miller for "congestion of the liver and palpitation of the heart," and from November 4th to November 6th he was suffering from “heart trouble,” as certified to by Dr. Bourne. Dr. Bozovsky, of Dunkirk, attended him from December 17, 1902, to December 30, 1902,

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