HENDRICK
v.
EMPLOYERS' LIABILITY ASSUR. CORP.
893
sons claiming that they had actual wheat in the elevators at the time when the receiver was appointed. The claim was conceded to these persons, and a distribution made to them. There was another distribution as to a certain number of alleged lien holders. Now, in the present case, the petitioner, who stands in the position of a stock· holder, and is the assignee of a stockholder, appears with the note and contract under present consideration, which, as I have observed, con· stitute one agreement, and which were executed, given, and received for the purpose of raising money from the stockholders in order to clear off an indebtedness upon which each one of the stockholders would have been liable to pay under his obligation as a stockholder ot the company, and which papers contain a provision that the payment shall be made out of a certain fund, which might or might not thereafter exist, and claims that he has a right to be put upon the footing of a general creditor, and as such entitled to share in future dividends. I think not. The very terms of the agreement are against this construction. I cannot allow this claim to participate in the distribution of the assets. HENDRICK v. EMPLOYERS' LIABILITY ASSUR. CORP. (Circuit Court, E. D. Missouri, N. D. June 2, 1894.) ACCIDENT INSURANCE-PASSENGER IN PuBLIC CONVEYANCE.
One insured by an accident policy "as a passenger in a public conveyance provided by a common carrier," after he had alighted from a railroad train. at a station from which he intended to continue his journey by a latei' train, attempted to speak to the engineer about a matter having no connection with the continuance of his journey, or his condition as a passenger, and, while crossing the platform of a car, fell therefrom, and was injured. Held, that he could not recover on the policy for his injuries.
This was an action by James M. Hendrick against the Employers' Liability Assurance Corporation on an insurance policy. This was an action brought upon a policy of accident insurance issued September 21,1893, the material portion of which is as follows: "For and in consideration of a premium of $1.00, this policy hereby insures James M. Hendrick, of Louisiana, Missouri, for the under-mentioned benefits, and always subject to the conditions on the back thereof (which are made a part of this contract), from one o'clock a. m. on September 21, 1893, as a passengel' in a public conveyance provided by a common carrier within the limits of the United States or dominion of Canada, and also insures within the limits of the city of Chicago, Illinois, during the progress of the World's Fair. This insurance shall cease when. the insured shall have returned to his residence, but shall in no event extend beyood a period of seven days (expiring at one o'clock a. m.) from date of register above. Benefits: $3,000 at death, or for the loss or actual separation of two entire feet, or two entire hands, or one entire foot and one entire hand, or of the complete and irretrievable loss of the sight of both eyes; $1,500 for loss, by actual separation, of one entire hand or one entire foot." The facts in the case were undisputed, and were as follows: The plaintiff purchased the two accident policies on September 21, 1893, at that time residing in Bowling Green, Mo. On September 23, 1893, he started from Bowling Green, Mo., intending to go to Chicago, for the purpose of attending the World's Fair. He had passes over the Chicago & Alton Railroad from Louisiana, Mo., to Chicago, and had left them at the hotel at Louisiana, Mo. He started from Bowling Green late on the night of September 23d, and arrived at Louisiana,
894
':..,.....
FEDERAL
Ri!JPOR'l'llJR, vol. 62. '
Md.j about2'o'clock(mtJie morningr{lftl\e24th" Theplaibtij!iJpaid his,fare from Bowling Green. to, When. ,tI;le train Hquisiana, the Pl,ll:ll,n"tiff got off the j:.rlU,·P'I, fOr,' 0" t, ,go, ',to, h, getti,ng h,is ' passes, and jou.rn,eyto' Ohlc,ago at 3 o',clock in 'the afternoon of :the siuDe day, After llligbit!illgupon<the pla'lJform; the'i[J'lam'fflf,wMhad just ,resigned hispOsitioJ:!. as ioeomotiv.e fireman for the 0hicag() & Alton Railroad !Ol'W/lfQ, towar4/il epd of tb,e, fq.r, ;thePurpose lilod,adv!l\lnghim had of the ratlt'oad 'company; 'and tllat'sotnES other pel.'son=a nftttual friebd=could now apply fb'rthe positlon made vacant by 'his resignation, ' ThetrlHik u!'itm which ,theitta1o was standing ran: east andweSJt,the engine being to>1;heeast. The ,Plain"ttf,',d,h,'"a.d,""gO,t,ten, Off, Wl, th,e, ,nort,h or, le,rt.ban"d:',si,(1e,', ;Of, th,e,'W, a,nd, as he sta,rte,dJ;orw;ard be was troJ;ll r,eaC;ping the engine up'6l1 'tIlatsldeof the train by ,a: large truck load .of baggage, ,which stood in his way, ood prevented him t'Fom.i getting'by, He thel'euj;iott, crossed over to the south or right-h8.b,d ,side of: the! train, ,passing over the platform of the startedforFardi towardlj the, but, when feet of tile thebell:uvon theengil;l.e began to ring, inthat the train was about to stal't, Seeing that be" woUld be unable to have cobference with' the enginecer before the train should start, he retraced hisllteps to the west end of,tJiebaggligelCllt, ,and there Started to cross over the platform of that car. After he had gotten upqJl:,t4esteps9f the platform, he stumbled upon a large box which was lying upon the platform of the baggage car, and fell backwards. In falling, his foot became entangled in a rope attached to the box, and he was dragged quite a distance, and the wheels of the tra:inpassed over his: left Its amputation.
a
& Ball and Geo. A; Mahl1n,for 'plaJntiff. Lathrop, Morrow,FQx & Mopre,
,
.WILLIAMs, Judge' the jury).. It is a question, under this complaint and· the testimonY,ras to whether the court shall instruct jury {jeremptorily to find for theplai:iltiff " ,,', '.',' or for the defendant. , " The rights of the pl3lntiff under accident policy of this kind f/hould'ootliberally construed in favor of his recovery. That 1s the settled policy of the law, where he has purchased an accident policy, anllrelied upon it, t4;lt, if he is and ,!!leeks redress at the hands of the court, as against the issuers of the accident ticket or policy, it should be liberally construed in favor Qthis recovery. The in this case,is simply the testimony offered by the plain:tip himself. The policy llndertakestQpay him aeertain amount .in case of an accident he receives as a passenger upon any railroad or other public'carrj.er. It says "vehicles," but 'upon the line of any Pllblic . The ,testimony of shows that pe, got on attain at n'owling Green, a;q.dpaid 1118 fare to the <lity of that he got off at Louisiana, for the purpose of going unti13 o'clock the next to' his boarding day, and take that tridn for the city. qf Chlcagi;>.' He says there was no other train that he could fake until 3:(j;olock the next dav, 'That was his. intentl<>n.' He arrived in, LOuisiana during the time. , Now, if. he had' been '.ftijttted ,wllile. doing 'anythb:lg' ibcideIit to ,4is. journey fJ.'oiIi' Bowlin,g"Green.toGhicago, the court wo1Jld i,nstrud thejury tofinQ a verdict in favor of plaintiff. I will go further; and say that, if he was injured after getting off from the cars at Louisiana, and going up'to his boarding place
an
HENDRICK ,V. EMl'LOYERS' LIABILITY ASSUR. CORP.
895
to get his transportation, I would hold that to be a continuance of his journey; that is, that the accident was received while doing somethb,lgto continue his journey as a passenger. however, would be an extreme view of it in favor of the plaintiff. But the testimony here shows that he had gotten off the train safely, without ltarm to himself, and that this injury was received while doing something in no manner connected with his journey to Chicago, or in any manner connected with the condition of a passenger. He himself says that he got off the train, and that it was his intention to stay there until 3 o'clock the next day, and that he went down the platform on the north side to interview the fireman or engineer about something entirely disconnected with the relation of a passenger,-to tell them that he had quit the road, that they might notify some 'friend of his that he might apply for his situation. It had nothing to do at all with the continuance of his journey, or with his position as a passenger. While doing this he did a very dangerous thing,-in the nighttime, passed over the platform of the train, and got upon the other side, and heard the bell ring, giving the signal to start. Now, he said he could not see the engineer, and he. got on the platform again to cross over; train liable to start at any moment. But even if he had done that while pursuing the idea of being a passenger, and in the rrJation of a passenger to the common carrier, I think the ticket would provide even for that kind of an accident. But this company had a right to limit their liability to the relation of a passenger upon a common carrier. The view of the court is that he had clearly ceased to be a passenger when this injury occurred. He had got to the end of his journey. By the very charge of Judge Drummond, in the case cited by plain. tiff, it is unquestionable, if Judge Drummond had found the testimony, as in this case, clearly showing that that man had arrived at the end of the journey, the charge would have been to find fol' the defendant; but he said: "It is not clear, and it is fol' the jury to say, whether he had arrived at the end of his jourm'y or not." "If you find he had not UlTived at the end of his journey," he says, "then the liability continues." "He had a right to get off." A man is not obliged to stay upon the cars at every station. He may want to get off, for various reasons incident to his passengership, but, after arriving at the end of his journey, and getting oft' upon the platfol'm, if he is injured in the doing of something that is not at all incid nt to his journey, then the liability ceases. The testimony is unquestioned that this injury was received after he arrived at the end of his journey at and while doing something that was not at all connected with the idea of his being a passenger upon any common carrier. He says himself that he was doing something else, The instruction of the court to the jury is that the defendant is entitled to a verdict upon this testimony, and it is so ordered.
896 f ,
J'EDEBA.L BlilPOBTER,
vol. 62.
GRAHAM v. CHICAGO, ST. P., M. & O. RY. CO,
(Circuit Court, D. Minnesota, INJURY E(lLI(lENCE.
Division.
Sept. 4, '1894.)
Tbefll1iure of a.. railroad cOI)lP!lny to securely fasten the ends of a car Which are on hinges, so &$ 'to allow the car to be used as. a fiat car by dropping the ends inward,' isinot negligence, so as to render the company liable to a brakeman Who,. in: getting off the car, is thrown beneath the by reason of the end, in, he having used it as a support.
Action by Hall I. Graham the Chicago, St Paul, Minneapolis& Omaha Railway Compariy;' . There was a verdict for plaintiff, and defendant moved for a new'trial. Granted. Motion by .defen(j.ant for new trial. The plaintiff, a brakeman in the service·of the defendant company for more than six years, suffered personal injul.'ies on February 25, 1892, in attempting. to alight from a coal car. He was' Precipitated under the moving cars, and his right arm badly crushed, necessitating amput1ltion. It was the. duty of the plaintiff to aid in distributing freight cars and making up ,a mixed train at Kasota Junction, on defendant's road, in this district. There was a grade at or near the station at this junction, and a part of plaintiff's· duty was to mount moving cars eoming down this grade, and set the brakes to stop them. so they Would not run into and injure stationary cars farther down on the track. In pursuance of his duty,the plaintiff had mounted a stl.'ing of moving cars, and, in alighting from a coal car in this string, was injured. This car was called a "Gondola," which usually has hand holds at each end, to aid brakemen in ascending and descending therefrom, and also end gates or end boards hinged to the fioor of the car, and so made that theY could be fastened upright or perpendidularto the floor by hooks and staples, or laid down inward on the floor. In attempting to alight from this car, the plaintiff took hold of the top of one of the end gates, which was upright, and, as he gave a spring to jump off. it fell inward, and he was thrown with his arm on the track. On the trial. the jury found a verdict for the plaintiff. A motion is now made for a new,trial, for errors appaJ.'ent on the record.
Henry A. Morgan and John A.Lovely, for plaintiff. Thomas Wilson, Lorin Cray, and S. L. Perrin, for defendant NELSON, District Judge. This gondola car 'was constructed with reference to carrying coal and bulky articles and lumber. It was not out of repair or improperly constructed. The injury to the plaintiff did not result from the want of a hand hold on the car, for the plaintiff admits that he knew there was none on the car before he made the attempt to alight. The car was adapted to the purposes for which it was designed. The end gates or boards were made adjustable, so that the car would carry coal or other materialwben the end gates were upright, and could be used as a flat car when the gates were down. For such purposes this car was built and could be safely used, though it might be unsafe for a brakeman to rely upon an end gate when upright as a support in alighting from the car when in motion. The only alleged negligence of the defendant urged is the failure to have the end gate securely fastened, so as to allow the plaintiff to safely use it when he attempted to alight from the car. The duty of the defendant company to keep these end gates, when upright, fixed securely with special reference to their use by a brakeman in alighting from the