Piper v. Mercantile Mutual Accident Ass'n

Field, C. J. The policy or certificate issued by the defendant was upon certain express conditions, one of which contained the following clause: “ Entering or attempting to enter or leave any public conveyance using steam as a motive power while the same is in motion, or walking or being on the road bed or bridge of any steam railway, are hazards not contemplated or covered by this certificate.” On the undisputed facts of this case we think that the plaintiff’s husband when he was killed was walking on the road-bed of the New York and New England Railroad Company within the meaning of this clause. We have no occasion to consider whether crossing the road-bed of a railroad when travelling along a public way, or along a private way which a person has a right to use, is “ walking or being on the road-bed ” within the meaning of the certificate. According to the report, it must be taken as conceded that the plaintiff’s husband was walking longitudinally on the road-bed between the tracks of the railroad for the purpose of reaching the station. There was a public way across the railroad, and a walk parallel with the tracks extending from this way to the station, which he could have used. The place where he was walking was not fitted up as a way ; if was a part of the road-bed, and nothing [591] more. That many people used it as the plaintiff’s husband did is immaterial in a suit against this association. In accordance with the terms of the report, the Verdict is to stand.