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incorporated in life insurance policies, that the policy shall be invalid if the assured shall commit suicide, the burden in such cases being cast upon the company to aver and prove the breach of that condition: Hodsdon v. Guardian Life Ins. Co., 97 Mass. 144; 93 Am. Dec. 73; Campbell v. New England etc. Ins. Co., 98 Mass. 381; Redman v. Aetna Ins. Co., 49 Wis. 431; Grangers' Life Ins. Co. v. Brown, 57 Miss. 308; 34 Am. Rep. 446.

We think that the plaintiff here was only required to prove that the death of Daniel Meadows was caused by violent and accidental injuries, visible upon his person, and that due notice of his death and proof of loss were made within the time required by the policy, and that defendant had the burden of proving that his death was caused by one of the conditions by it specially pleaded. But for the stipulation in the policy, the negligence of the deceased would have constituted no defense whatever to the action. A fair construction of it simply permits a plea of contributory negligence, and 92 the burden of sustaining that plea is upon the defendant who asserts it: Home etc. Asen. V. Sargent, 142 U. S. 691; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Anthony v. Mercantile etc. Assn., 162 Mass. 354; 44 Am. St. Rep. 367; Badenfield v. Massachusetts etc. Assn., 154 Masa. 77; Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486.

The plaintiff averred that all the conditions of the policy had been observed by his intestate. We think that the burden of establishing a violation of the executory stipulations, that Mr. Meadows should use due diligence for his personal safety and would not voluntarily expose himself to danger by going upon the roadbed of a railroad, properly devolved upon defendant, and shall so treat it in the further disposition of the cause.

The importance of settling the question of the burden of proof becomes at once apparent when we come to consider the decisive question in the case, the action of the circuit court in overruling the demurrer to the evidence.

Defendant urges that every reasonable inference or rational conjecture tends to show that Meadows was attempting to pass between the cars of the eastbound train of the Hannibal & St. Joseph railroad, and thereby lost his life; that in so doing he was violating his agreement with defendant, by voluntarily exposing himself to unnecessary danger and by being upon said road bed.

But much of this is speculation. The plaintiff showed beyond controversy that Daniel Meadows died of violent injuries, which were plainly visible upon his body; that the nature of these injuries left no doubt that they were the sole cause of his death, and proper proofs were made. Here he rested. He had made a


prima facie case, unless we are required to presume that, because he was killed by being run over by cars on a railroad track, he was voluntarily exposing himself to unnecessary dangers, and was violating his agreement in regard to being upon a roadbed of a railroad, within the meaning of the policy.

Such a presumption would destroy the presumption indulged by the law, that Meadows was at the time exercising proper care for his safety. In the absence of all evidence to the contrary, the law presumes that he was exercising due care for his protection. There is not a word of evidence tending to show he was intoxicated, or that he was robbed and murdered. He was a man of the full age of discretion and of business habits. Under such circumstances, the language of Judge Agnew in Allen v. Willard, 57 Pa. St. 374, is very pertinent. He says: "The natural instinct which leads men in their sober senses to avoid injury and preserve life is an element of evidence. In all questions touching the conduct of men, motives, feeling, and natural instincts are allowed to have their weight, and to constitute evidence for the consideration of courts and juries.”

And this court, in Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503, said: "Now, the law presumes that the deceased was in the exercise of ordinary care; and this presumption is not overthrown by the mere fact of injury”: Citing Shearman and Redfield on Negligence, sec. 44; Hoyt v. Hudson, 41 Wis. 105; 22 Am. Rep. 714; Gay v. Winter, 34 Cal. 153.

And in Parsons v. Missouri Pac. Ry. Co., 94 Mo. 294, this court again said: "There is no contributory negligence in the case, so far as the evidence in the record goes; it can only be found by indulging in unwarranted presumptions. The only presumption the law indulges in respect thereof is, that the deceased was in the exercise of ordinary care and diligence at all times in the discharge of his duties, until the contrary appears. . . . . It was not 94 incumbent upon the plaintiff, in the first place, to prove that the deceased was in the exercise of ordinary care and prudence”: Buesching v. St. Louis Gaslight Co., 73 Mo. 219; 39 Am. Rep. 503; Huckshold v. St. Louis etc. Ry. Co., 90 Mo. 548; Crumpley v. Hannibal etc. R. R. Co., 111 Mo. 152.

And in the absence of all the evidence of how he came to be thrown under the train which killed him, the presumption is, that it was the result of accident: Mallory v. Travelers' Ins. Co., 47 N. Y. 52; 7 Am. Rep. 410; Lancaster v. Washington Life Ins. Co., 62 Mo. 121.

It follows that, by invoking these presumptions, plaintiff not only established a death by violence, but that he was in the exer

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cise of ordinary care and prudence when he met his death, and that it was caused by accident.

Nor is this presumption rebutted by the unexplained fact that "his body was found mangled upon a railroad track. There were many purposes for which he might lawfully go upon or across the railroad track.

In Badenfeld v. Massachusetts etc. Assn., 154 Mass. 77, a case strikingly similar to this, the trial court was asked to rule, upon the undisputed evidence, that the defense of want of due diligence, or of voluntary exposure to unnecessary danger by the de ceased, was made out, and to instruct the jury to find for defendant, which was refused and assigned as error. We can do no better than to adopt the reasoning of the supreme court of Massachusetts in that case:

“There was no evidence of the cause of his fall, and it cannot be contended that the mere fact that he fell under the car is a defense. The real contention of the defendant, expressed in different forms in its prayers for instructions, is that the mere fact that the deceased was in a dangerous place (on the platform east of the track), or, as stated in one prayer for instructions, doing a dangerous act (leaving a car while it was in 85 motion), is, as matter of law, conclusive proof that he did not use all due diligence for personal safety and protection, and that he voluntarily exposed himself to unnecessary danger. This is not an action against the railroad company, in which the mutual rights and duties of a person injured and the company are involved. As regards the defendant, the deceased had a right to go upon the platform, and to examine the wall of the building and the girders, and the platform, and the car standing upon the track, and to enter and leave them. None of these acts would, of itself, be evidence of want of due diligence for personal safety, or of voluntary exposure to unnecessary danger. Any of them might be done carefully or carelessly. The manner and circumstances of the act would give character to it. The facts that the de ceased was upon the platform, and that he was injured in the manner shown, clearly do not constitute negligence in law, or afford conclusive evidence of negligence.

“The defendant asked for instructions upon the hypothesis that the deceased fell while leaving the car when it was in motion. There was no evidence that he so fell, but, if it could be inferred, it would not be conclusive of his negligence. That would depend upon the circumstances, and there would be no presumption that the circumstances were such as to make it negligent. If the jury could surmise that he left the car when it


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was in motion under circumstances which rendered the act negligent, they could equally well surmise that he left it under cir. cumstances which would show that the act was not negligento

If the jury infer an act, they are not, without evidence, at liberty to infer the circumstances which made the act negligent. The jury could not properly base their verdict upon particular facts found without evidence. The real question was, whether the facts directly proved 96 by the evidence, and those to be inferred from them, sustained the burden of proof which was upon the defendant, and this was clearly a question for the jury, and not for the court, unless the court could rule that there was not sufficient evidence.”

In Anthony v. Mercantile etc. Assn., 162 Mass. 354, 44 Am. St. Rep. 367, a passenger in good health, on a train for Denver, was found unconscious upon the ground between the platform and the nearest rail of the track at Granite station as the train was moving out of the station. His legs were crushed, and he died in four hours. In addition to a clause providing that he should not voluntarily expose himself to unnecessary dangers or hazards was the following: "Standing, riding, or being upon the platforms of moving railway coaches, other than street-cars, or riding in any other place not provided for the transportation of passengers, or entering, or attempting to enter or leave, any public conveyance using steam as motive power while the same is in motion, . are hazards not contemplated or covered by this certificate.” It was insisted: 1. That the burden was on plaintiff to show that his intestate's death was not caused by a violation of the clause last cited; and 2. That the court should have taken the case from the jury. But the supreme court of Massachusetts again held that: 1. Under the general rule of pleading, plaintiff was not required to allege or prove that the death was not caused by a violation of one of the conditions to which the insurance did not apply; and 2. That the court properly overruled the demurrer to the evidence; that while the circumstances pointed strongly to the inference that the deceased was “standing, riding, or being” on the platform of the moving cars, yet, as a matter of law, a jury was not bound to find that fact.

97 No error was committed in overruling the demurter to the evidence. The circuit court could not say, as a matter of law, that defendant had affirmatively established its defense.

2. This brings us, then, to a consideration of the instructions.

The criticism of the plaintiff's first instruction is, that it ignores the essential facts in the case, to wit, the facts tending to establish the defense. If this instruction stood alone, and the theory of the defense had not been strongly and clearly brought out by defendant's instructions, defendant would have had just cause of complaint, but when all the instructions are read together, as they must be, it will be found there was no error: Owens v. Kansas City etc. R. R. Co., 95 Mo. 169; 6 Am. St. Rep. 39; First Nat. Bank v. Hatch, 98 Mo. 376; Spillane v. Missouri Pac. Ry. Co., 111 Mo. 564.

Nor was there any conflict between plaintiff's first and defendant's fourth. They were simply predicated upon different hypothetical views of the evidence.

3. Finally, it is insisted the court erred in defining "roadbed” in plaintiff's second instruction. As already stated, that instruction is in these words: “2. The term 'road bed' 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 of the roadbed of said railroad, within the meaning of the condition of the policy read in evidence.”

We are cited by counsel to the lexicographers for the definition of "roadbed," and to cases defining roadbeds for the purpose of taxation, but it seems to us these cases are not applicable here. The case of Piper 98 v. Mercantile etc. Assn., 161 Mass. 589, is pertinent, but we think is distinguishable from the case at bar in the facts.

There the evidence disclosed, beyond controversy, that the de ceased was walking longitudinally on the roadbed between the tracks of the railroad in front of the engine, and was struck and killed. The chief justice said: "The place where he was walking was not fitted up as a way; it was a part of the roadbed, and nothing more. That many people used it is immate rial.”

In this case, the evidence shows that the space between the main line of the Hannibal & St. Joseph railroad and the park was a well-beaten, level, and smooth walk, made of fine cindere beaten down, and the space between the main, or north, track and the passing track was of the uniform width of ten feet and of the same material as the walk between the park and the main track. Unlike the track in Piper v. Mercantile etc. Assn., 161 Mass. 589, the evidence showed it had been made smooth to walk on, and the most prudent person would not have hesitated to have walked along said space, because there would be no danger from passing trains.

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