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An examination of the accompanying plat will aid in understanding the situation at the place of the accident. Elm street, where Mr. Meadows was last seen alive, runs north and south across the railroad tracks just west of the Wabash depot. The tank at which the eastbound engine was then taking water is indicated by a T shaped mark between the Hannibal tracks, just east of the Hannibal depot. The distance from the Hannibal depot to Elm street is about two hundred yards. The distance 86 between the two Hannibal tracks is ten feet. The body was found at the place of the cross-mark, opposite the oil tank. This was about midway of the parallelogram indicating a park, spoken of in the testimony. An electric arc light hangs north of the Hannibal tracks, just west of the Hannibal depot. There is an even grade between the Hannibal and Wabash depots. Between the main track and the passing track there is a uniform space of ten feet, the condition of the ground just the same as on the north side of the main track, filled with fine cinders and beaten down.

Witness Darby says the ground from Elm street east between the track is smooth and level. The undisputed evidence is, that the rear end of the eastbound train on the main track was & considerable distance east of Elm street. There was no witness to the accident.

The theory of the defendant, as shown by its second instruction, is, that, after leaving the Wabash depot, Meadows went east on the north side of the main track of the road, upon which the eastbound train was standing, and attempted to pass between two of the cars of that train, intending by that way to reach the westbound train on the south or passing track; or he walked along the south side, and was caught by the cars and killed; and, in support of the theory, relies upon the evidence that the trunk of the remains was found between the main and side tracks, and the legs between the rails of the main track, and the evidence of Fitzpatrick as to Meadows purpose to take the westbound train to St. Joseph. Whereas, plaintiff insists this theory is met by the facts that Meadows was familiar with the depot grounds; that he knew the smooth, beaten ground ten feet wide between the main and the passing tracks; that the eastbound train on the main track was standing east of Elm street, on which he 87 passed from the Wabash depot to the Hannibal tracks; the improbability of his spending ten or fifteen minutes going so short a distance as that between the Wabash depot and the point where he was supposed to have been struck, and the extreme difficulty of believing that a rational man would be guilty of the incredible folly of standing on Elm street, where he could look

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east over a familiar, level, unobstructed way to the train he wanted to reach, and deliberately choosing a way he knew would involve the difficulty and peril of passing between the cars of a train standing on the main track.

The court gave the following instructions for plaintiff:

"1. The jury are instructed if defendant issued to Daniel A.' Meadows the policy read in evidence, and if they believe from the evidence that said Daniel A. Meadows, on and about the thirtieth day of July, 1892, was accidently run upon and over by a car or train of cars on the track of the Hannibal & St. Joseph railroad at Chillicothe, Missouri, whereby he sustained such violent and accidental injuries as to be externally visible upon his person, and which injuries, independent of all other causes, occasioned his death within ninety days from the happening of such accident; that plaintiff gave defendant immediate notice in writing, with full particulars, of the accident and furnished defendant with affirmative proof of the death of said Meadows within seven months of the date thereof; then the finding should be for the plaintiff.

“2. The term 'roadbed' of a railroad means that part of the railroad company's right of way which is occupied by the ties and rails constituting the railroad track, and not the entire space included in such right of way, and in this case the ten feet of space mentioned in evidence between the tracks of the Hannibal & St. Joseph railroad, mentioned in evidence, is not a part 88 of the roadbed of said railroad within the meaning of the condition of the policy read in evidence.

“3. In absence of proof to the contrary, the law presumes that Daniel A. Meadows was, at the time of his death, exercising proper care for his safety."

For the defendant the court gave the following instructions:

"1. The court instructs the jury that, under the terms of the policy sued upon, Daniel A. Meadows, deceased, was required to use due diligence for his personal safety and protection, and was prohibited from voluntarily exposing himself to unnecessary danger or perilous venture. By the term 'due diligence, as used in this instruction, is meant the exercise of such care and caution as an ordinarily prudent man would use under similar circumstances; and by the term, 'voluntarily exposing himself to unnecessary danger or perilous venture,' is meant the intentional doing of some act which reason and ordinary prudence would pronounce dangerous. And if you believe from the evidence that the deceased, Daniel A. Meadows, was killed because of his failure to use due diligence for his personal safety and protection, and be

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cause of his voluntary exposure to unnecessary danger or perilous venture, as these terms are defined in these instructions, your verdict must be for the defendant.

“2. The jury are instructed that if they believe from the evi'dence that Daniel A. Meadows, deceased, at the time he met his death, was voluntarily exposing himself to unnecessary danger, they will find for the defendant.

“And the court further instructs the jury that an attempt to pass between two of the cars of a train upon the track of the Hannibal & St. Joseph railroad, at Chillicothe, Missouri, at night, the train having the engine attached and being in condition to run, would 89 constitute voluntary exposure within the meaning of this instruction.

"3. The court instructs the jury that if they believe from the evidence that Daniel A. Meadows was killed while being upon, or attempting to board, a train not provided by the railroad for the transportation of passengers, your verdict must be for the defendant.

“4. The court instructs the jury that if you believe from the evidence that Daniel A. Meadows was killed while in the act of walking along, or being upon, the road bed of the Hannibal & St. Joseph railroad, at Chillicothe, Missouri, your verdict must be for the defendant.

“5. The court instructs the jury that, in determining the question as to whether or not Daniel A. Meadows was chargeable with negligence, the jury must take into consideration all the facts and circumstances that were given in the case.”

1. Before proceeding to certain specific exceptions discussed by counsel, it seems best to determine where the burden lies in this case.

The policy declared on insures Daniel A. Meadows in the sum of five thousand dollars for the term of twelve months, commencing at 12 o'clock noon, on the eleventh day of July, 1892. Said sum to be paid to his legal representatives (if he be dead), “after due notice and satisfactory proof that the insured has, during the continuance of this policy, sustained such violent and accidental injuries as shall externally be visible upon his person, and which, independently of all causes, shall have occasioned death within ninety days from the time of the happening of such accident," upon certain conditions indorsed upon the back there of. Other conditions were indorsed upon the back of said policy, among them the two following:

80 “The claimant shall establish affirmatively, under any claim or proceeding thereunder, that the injury or death resulted

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from actual accident according to the policy." And further: “The insured agrees to use due diligence for personal safety and protection; and this insurance does not cover, and the company will not be liable for, injury nor death while engaged in, caused by, resulting from, or attributable, partially or wholly, to any of the following causes: Voluntary exposure to unnecessary danger or perilous venture, violating law or the rules of any company or corporation, intentional injuries inflicted by the insured or any other person, or entering, or trying to enter or leave, any moving conveyance propelled by steam power, or riding in or upon any such conveyance not provided for the transportation of passengers, or being upon a railroad bridge, trestle, or roadbed.”

The primary question is, What amount of proof is necessary. to establish a prima facie case for plaintiff? In short, must henot only establish that the death of the assured was caused by "such violent and accidental injuries as shall externally be visible upon his person, and, independently of all other causes, occasioned his death within ninety days from the happening thereof,” but must he also prove that his intestate's death was not caused by his violation of some one or more of the vast number of conditions and executory stipulations as to his future con duct indorsed upon said policy?

The general rule of pleading upon a contract which contains conditions, exceptions, or provisos is thus stated by the supreme judicial court of Massachusetts in Commonwealth v. Hart, 11 Cush. 130: "If such instrument contain in it, first, a general clause, and afterward a separate and distinct clause which has the effect of taking out of the general clause something that would otherwise be included in it, a party, relying upon the 91 general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleadingi, state it, together with the exception."

And the pleader is only required to state the substantive facts a hich he is bound to prove: Gould on Pleading, c. 4, secs. 20, 21: Vavasour v. Ormrod, 9 Dowl. & R. 597; 6 Barn. & C. 430; 2 Saunders on Pleading and Evidence, 2d ed., 1025, 1026.

It has been ruled by the supreme court of the United States in Piedmont etc. Ing. Co. v. Ewing, 92 U. S. 377, that in actions upon policies containing many provisos and conditions, the courte will require the insurance company to prove the want of compliance with any particular proviso or condition upon which it relies, and this has been generally held as to the condition, usually

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