1163, 12 Sup. Ct. Rep. 332; Leman v. Man- | hattan L. Ins. Co. 46 La. Ann. 1189, 24 L. R. A. 589, 15 So. 388; Meadows v. Pacific Mut. L. Ins. Co. 129 Mo. 76, 31 S. W. 578.

The defenses of exceptions in the policy were set up in special pleas, and the burden of proof was on plaintiff in error to prove the truth of the facts set up.

Rep. 474; Berger v. Pacific Mut. L. Ins. Co. 88 Fed. Rep. 241; Commercial Travelers' Mut. Acci. Asso. v. Fulton, 45 U. S. App. 578, 79 Fed. Rep. 423, 24 C. C. A. 654; DeLoy v. Travelers' Ins. Co. 171 Pa. 1, 32 Atl. 1108; London & L. F. Ins. Co. v. Fischer, 92 Fed. Rep. 500, 34 C. C. A. 503.

It is not necessary for the plaintiff to show how the accident happened, nor to prove that it was not suicide.

Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360; Home Benefit Asso. v. Sargent, 142 U. S. Travellers' Ins. Co. v. McConkey, 127 U. 691, 35 L. ed. 1160, 12 Sup. Ct. Rep. 332; S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360; Travelers' Ins. Co. v. Mitchell, 47 U. S. App. Mallory v. Travelers' Ins. Co. 47 N. Y. 52, 260, 78 Fed. Rep. 754, 24 C. C. A. 305; Free-7 Am. Rep. 410; Manufacturers' Acci. Inman v. Travelers' Ins. Co. 144 Mass. 572, 12 demnity Co. v. Dorgan, 16 U. S. App. 290, 22 N. E. 372; Badenfeld v. Massachusetts Mut. L. R. A. 620, 58 Fed. Rep. 945, 7 ̊C. C. A. Acci. Asso. 154 Mass. 77, 13 L. R. A. 263, 27581; Accident Ins. Co. v. Bennett, 90 Tenn. N. E. 769; Anthony v. Mercantile Mut. Acci. 256, 16 S. W. 723; Home Benefit Asso. v. Asso. 162 Mass. 354, 26 L. R. A. 406, 38 N. Sargent, 142 U. S. 693, 35 L. ed. 1163, 12 E. 973; Cronkhite v. Travelers' Ins. Co. 75 Sup. Ct. Rep. 332; Leman v. Manhattan L. Wis. 116, 43 N. W. 731; Coburn v. Travel-Ins. Co. 46 La. Ann. 1189, 24 L. R. A. 589, ers' Ins. Co. 145 Mass. 227, 13 N. E. 604; 15 So. 388; Meadows v. Pacific Mut. L. Ins. Piedmont & A. L. Ins. Co. v. Ewing, 92 U. Co. 129 Mo. 76, 31 S. W. 578; Piedmont & S. 377, 23 L. ed. 610; 2 Biddle, Ins. ¶¶ 1310-A. L. Ins. Co. v. Ewing, 92 U. S. 377, 23 L. 1315: Standard Life & Acci. Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530; May, Ins. 2d ed. 11 589, 591; Bliss, L. Ins. 1st ed. § 374.

Before the court can give a peremptory instruction it must have tangible facts which are undisputed from which the conclusion claimed follows as a matter of law.

1 Greenl. Ev. §§ 44, 48, 49; Myler v. Standard Life & Acci. Ins. Co. 63 U. S. App. 352, 92 Fed. Rep. 861, 35 C. C. A. 55; Travelers' Ins. Co. v. Robbins, 27 U. S. App. 547, 27 L. R. A. 629, 65 Fed. Rep. 178, 12 C. C. A. 544; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679; Louisville & N. R. Co. v. Woodson, 134 U. S. 614, 33 L. ed. 1032, 10 Sup. Ct. Rep. 628.

It was against permanent occupancy of the platform for the purpose of travel that the provision in the policy was inserted, and it did not refer to that necessary occupancy of the platform which is only temporary in its character.

ed. 610; Freeman v. Travelers' Ins. Co. 144 Mass. 572, 12 N. E. 372; Coburn v. Travelers' Ins. Co. 145 Mass. 226, 13 N. E. 604; Badenfeld v. Massachusetts Mut. Acci. Asso. 154 Mass. 77, 13 L. R. A. 263, 27 N. E. 769; Anthony v. Mercantile Mut. Acci. Asso. 162 Mass. 354, 26 L. R. A. 406, 38 N. E. 973; Cronkhite v. Travelers' Ins. Co. 75 Wis. 116, 43 N. W. 731.

The burden of proof was upon the plaintiff in error to show that Locke committed suicide, or that the accident happened while he was riding upon the platform or steps of a railway train.

Home Benefit Asso. v. Sargent, 142 U. S. 691, 35 L. ed. 1160, 8 Sup. Ct. Rep. 1360; Travellers' Ins. Co. v. McConkey, 127 U. S. 663, 32 L. ed. 309, 8 Sup. Ct. Rep. 1360; Travelers' Ins. Co. v. Mitchell, 47 U. S. App. 260, 78 Fed. Rep. 754, 24 C. C. A. 305; Free man v. Travelers' Ins. Co. 144 Mass. 573, 12 N. E. 372; Badenfeld v. Massachusetts Mut. Acci. Asso. 154 Mass. 77, 13 L. R. A. 263, 27

Berliner v. Travelers' Ins. Co. 121 Cal. 458, 41 L. R. A. 467, 53 Pac. 918; Hull v. Equi-N. E. 769; Anthony v. Mercantile Mut. Acci. table Acci. Asso. 41 Minn. 232, 42 N. W. 936; Anthony v. Mercantile Mut. Acci. Asso. 162 Mass. 354, 26 L. R. A. 406, 38 N. E. 973: Sawtelle v. Railway Pass. Assur. Co. 15 Blatchf. 216, Fed. Cas. No. 12,392.

Exceptions of this kind are to be most strongly construed against the insurer and liberally in favor of the insured.

May, Ins. 3d ed. § 175; Travellers' Ins. Co. v. McConkey, 127 U. S. 666, 32 L. ed. 310, 8 Sup. Ct. Rep. 1360: American Surety Co. v. Pauly, 170 U. S. 133, 42 L. ed. 977, 18 Sup. Ct. Rep. 552.

Where the terms of a policy permit of more than one construction, that will be adopted which supports its validity.

Berliner v. Travelers' Ins. Co. 121 Cal. 458, 41 L. R. A. 467, 53 Pac. 918; Darrow v. Family Fund Soc. 116 N. Y. 537, 6 L. R. A. 495, 22 N. E. 1093: Accident Ins. Co. v. Crandal, 120 U. S. 527, 30 L. ed. 740, 7 Sup. Ct. Rep. 685; Equitable Acci. Ins. Co. v. Osborn, 90 Ala. 201, 13 L. R. A. 267, 9 So. 869; Lowenstein v. Fidelity & C. Co. 88 Fed.

Asso. 162 Mass. 355, 26 L. R. A. 406, 38 N. E. 973; Piedmont & A. L. Ins. Co. v. Ewing, 92 U. S. 377, 23 L. ed. 610; Coburn v. Travelers' Ins. Co. 145 Mass. 227, 13 N. E. 604; Chattanooga Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S. W. 496; Cronkhite v. Travelers Ins. Co. 75 Wis. 116, 43 N. W. 731; 2 Biddle, Ins. ¶¶ 1310-1315; Sutherland v. Standard Life & Acci. Ins. Co. 87 Iowa, 505, 54 N. W. 453; Standard Life & Acci. Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530; Redman v. Etna Ins. Co. 49 Wis. 431, 4 N. W. 591; Cassacia v. Phoenix Ins. Co. 28 Cal. 628; Phoenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9, 81 Am. Dec. 521; May, Ins. 2d ed. ¶¶ 589, 591; Bliss, L. Ins. 1st ed. §§ 374 et seq.

The presumption is always against suicide and in favor of accident.

This presumption always arises when there is uncertainty as to how death happened.

If the proof is evenly balanced so that it is impossible to tell whether the death was the result of accident or suicide, the pre

sumption that it was not suicide steps in and is controlling.

Continental Ins. Co. v. Delpeuch, 82 Pa. 235; 2 Wharton, Ev. § 1247; 1 Rice, Ev. p. 75, subs. E; Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360; Mallory v. Travelers' Ins. Co. 47 N. Y. 52, 7 Am. Rep. 410; Accident Ins. Co. v. Bennett, 90 Tenn. 256, 16 S. W. 723; Leman v. Manhattan L. Ins. Co. 46 La. Ann. 1189, 24 L. R. A. 589, 15 So. 388.

Day, Circuit Judge, delivered the opinion of the court:

rate of speed between the city of Memphis and Jasper. Avers that the injuries were caused wholly or partly, directly or indirectly, while the said Locke was riding on the platform or steps of said railway car in express violation of the conditions of the contract. Fourth. Avers that said Locke came to his death because of a violation of the conditions of said contract, providing for no liability in case the assured should voluutarily and unnecessarily expose himself to danger. A replication was filed, taking issue on these several pleas, and the case went to trial to a jury, resulting in a recovery upon the policy.

Upon conclusion of the evidence a motion was made by the defendant to arrest the case from the jury, and to direct a verdict in favor of the defendant. The court, however, submitted the case to the jury, and afterwards overruled the motion for a new trial. In this court, upon this branch of the case, the only proper inquiry is, Should the court have directed a verdict? The practice in this respect is too well settled to need extended discussion. It was held in the case of Travelers' Ins. Co. v. Mitchell, 47 U. S. App. 260, 78 Fed. Rep. 754, 24 C. C. A. 305,

which the opinion was written Mr. Justice Harlan, that "the jury should be permitted to return a verdict according to its own views of the facts, unless, upon a survey of the whole evidence, and giving effect to every inference to be fairly or reasonably drawn from it, the case is palpably for the party asking a peremptory instruction. On the other hand, a case cannot properly be withdrawn from the consideration of the jury simply because, in the judgment of the court, there is a preponderance of evidence in favor of the party asking a peremptory instruction."

This is an action to recover on a contract of accident insurance evidenced by a ticket issued to Stephen P. Locke on the 28th day of December, 1897. The insurance was in the sum of $3,000, against immediate, continuous, or entire disability or death caused by bodily injuries inflicted solely by external, violent, and accidental means. Certain agreements and conditions are attached to the contract as conditions of the insurance, --among others, that the contract did not cover disappearance nor suicide, sane or insane; nor death nor disability resulting wholly or partly, directly or indirectly, from certain causes, conditions, and actions, in among others, voluntary and unnecessary ex-by posure to danger, entering or trying to enter or leave a moving conveyance using steam as a motor, or while riding on the platform or steps of any railway car. The declaration was in the usual form, averring the issue of the accident ticket containing the terms above set forth; that complainant had kept and complied with the conditions and terms of the contract; and that on the 29th day of December, about 4 A. M., traveling as a passenger, in the regular and usual way, on a car attached to a train of cars passing along the railroad of the company known as the Kansas City, Memphis, & Birmingham Railroad Company, from the city of Memphis, in the state of Tennessee, to the town of Jasper, in the state of Alabama, and, at a point near the said town of Jasper, Locke was externally, violently, and accidentally thrown How stands the present case? Was it from the said train of cars, and thereby in-palpably with the defendant, and could the stantly killed. The answer, after pleading jury fairly draw no other inference from the the general issue, sets up certain special testimony than that the decedant came to pleas. in which it is averred: First. That his death with suicidal intent? A careful the insured was not accidentally thrown examination of the facts disclosed in the from a train of cars, and that his injuries record convinces us that, giving effect to the and death were not accidental. Second. presumption of law against self-destruction, That the contract expressly provided that it the case was not so palpably one of suicide did not cover, and should not be enforceable as to justify this court in interfering with in the event said Locke should commit, sui- the action of the court below. The exact cide, sane or insane; and avers that said manner of decedent's death is left in great Locke did commit suicide on the 29th day of doubt from the testimony. Locke was a December, 1897, by voluntarily, and with in- man about fifty years of age, of good chartent to destroy his life, jumping or falling acter and habits, in good health, and with a off a train of cars of the Kansas City, Mem- family to whom he was devoted. It appears phis, & Birmingham Railroad Company, he that upon the evening in question he rebeing then a passenger on said train, and marked to a friend that he was going to Jassaid train at the time running at a high rate per, Alabama, to get some money, and took of speed. Third. That, in violation of the passage from his home, the city of Memphis, terms of said contract, said plaintiff's in- to Jasper; purchasing before starting the testate came to his death in consequence of accident ticket now sued upon, and one in riding on the platform or steps of said train. the Travellers' Insurance Company for $6,Said train was at the time running at a high 000, both of which he mailed to his wife.

The learned justice cites with approbation the opinion of Judge Lurton upon the same subject in the case of Mount Adams & E. P. Inclined R. Co. v. Lowry, 43 U. S. App. 408, 74 Fed. Rep. 463, 20 C. C. A. 596.

This, however, appears to have been in ac- | he was despondent or not, but the weight of cordance with his custom, as the testimony the evidence is that he was not. While out shows that he had been in the habit of buy- of employment he was in good credit, and not ing such tickets and mailing them to his wife. in danger of immediate want. He is said to Taking passage about 9 o'clock P. M., he have been a man of unusual business qualiwent aboard the sleeping car, in which he fications, reticent about his affairs, and havhad purchased a lower berth. He sat in the ing no very close or confidential relations smoking room, conversing, until nearly 11 with others. Just how he came by his death o'clock. About this time he went to his is a matter of conjecture. On the one hand, berth. The conductor of the Pullman tes- it is argued that he could not have severed tifies that about 12 o'clock he came in con- connection with the car except at the rear tact with the feet of a man sitting on the platform, where the vestibule doors would berth supposed to be occupied by Mr. Locke. have prevented his getting off the train, exIt does appear that his berth was only oc- cept by throwing himself over the iron gate. cupied by lying down thereon. The porter On the other hand, it is claimed that he may had been instructed to call Mr. Locke before have been thrown from the train, either from the train reached Jasper, and after it left this car or from some of the connecting day Carbonhill. The train was due at Jasper at coaches, which were not provided with ves4:02 A. M., and at Carbonhill at 3:25 A. M. tibules, or may have gone to the rear platThe train was on time, running at about form of the train, to ascertain how far ho the rate of 32 miles an hour; and, after it was from his station, and have been sudden+ left Carbonhill, the porter having ascertained ly thrown against the rear gate, which, if that no one was in the berth assigned to not fastened, would have given away. These Locke, a search was made for the missing are matters of conjecture. It is very probpassenger. The passengers and Pullman able that he left the train from the rear in conductors and porter made a pretty thor- some way. There is nothing in the testiough search of the car and train. There is mony to warrant the court, in our judgment, some conflict in the proof as to whether they -even the trial court,-in interfering with looked upon the rear platform, but it ap- the conclusion reached by the jury. They pears that Locke might have been seen, had may well have reached the determination that he been on the platform at the time of the the testimony did not warrant the inference search. The search failed to discover his of suicide, and, though unable to find exactly presence, and at Jasper the conductor report- the manner in which decedent was taken off, ed to the master of transportation at Bir- the facts could have been reconciled with mingham the loss of a passenger. The car the theory of accident more readily than that upon which Locke took passage was supplied of suicide, giving the plaintiff the benefit of with vestibule appliances, and with a gate the presumption against self-destruction. something over 3 feet high, and which the The case, however, was sufficiently close to testimony tends to show was fastened when require at the hands of the court careful the car left Memphis, and was found secure instruction to the jury as to the proper rules when the car reached Birmingham. On the of law in weighing the testimony. early morning after Locke had started upon his journey, his body was found on a trestle of the railroad 32 miles from Jasper. It was lying upon the cross-ties, between the rails of the track, with head towards Jasper, face down, arms stretched above head, and feet between the cross-ties. Near the top, in the back part of the head, was a cut, and on one of the cross-ties between the rails there was a small quantity of blood. The body had on the overcoat, as Locke had when last seen before he went to his berth in the sleeper. Upon examination it was found that his right arm was broken at the elbow, and that several ribs were broken, and it is testified that the injury upon the skull was sufficient to produce death. It seems that Locke had had some difficulty with the Cole Manufacturing Company in the July preceding the accident. He had long been con nected with that company, and in July of 1897 a charge was made before the board of directors which Mr. Locke regarded as affecting his character, and which caused him to immediately tender his resignation, which was as promptly accepted. He did not have other employment up to the time of his decease, and had been engaged in the attempt to organize another company, but had not succeeded in doing so. There is a difference in the testimony of witnesses as to whether

It is argued that the court erred in charging the jury that the burden of proof was upon the defendant to establish by the weight of the testimony that the decedent came to his death with suicidal intent. It is claimed that death by suicide is not within the terms of the policy considered without the exception subsequently incorporated into it; that, while there might be a presumption that the decedent did not commit suicide, still this does not place the burden of proof to establish suicide upon the defendant, but, giving the plaintiff the benefit of that presumption, the burden is still with him to make out a death within the terms of the policy. This position is not wanting in authority for its support. We think, however, that the question is settled for this court by the decision of the Supreme Court of the United States in the case of Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360. In that case, as in this, the action was upon an accident policy, so far as the present question is concerned, like the one under consideration, and containing the same provision of nonliability in case of death by suicide. The answer set up the general issue, and alleged that the death was caused by suicide, and by intentional injury inflicted either by the insured or other persons. At the trial the court

charged the jury that evidence of the fact | extending over a common road about 31⁄2 or that the insured was found dead during the 4 miles west from Jasper, Alabama; that the life of the policy, from a pistol shot, was night was cold, and frost had settled around sufficient evidence that the insured met the body when discovered; that when found death by external and violent means, and he way lying upon his face; that there was a said: "It is manifest that self-destruction cut or fracture in the rear part of his head cannot be presumed. So strong is the in- or skull, sufficient of itself to produce death; stinctive love of life in the human breast, that when found both arms and several ribs and so uniform the efforts of men to preserve were broken; that there was a pool of blood their existence, that suicide cannot be pre- on the ground under or near where the body sumed. The plaintiff is therefore entitled was found, and the mark or evidence of hair to recover unless the defendant has by com- and blood on the sharp edge of one of the petent evidence overcome this presumption, cross-ties of the trestle corresponding to the and satisfied the jury by a preponderance of wound on the head, then these facts, if evidence that the injuries which caused the proven, in the absence of proof to the condeath of the insured were intentional on his trary sufficient to overcome them, authorize part." the jury to find that the said Stephen P. Locke, within the twenty-four hours covered

surance sued on, came to his death by external, violent, and accidental means, within the contract, and authorize a verdict for the plaintiff on that issue."

Again, the court below in that case charged: "The burden of proving this alle-by the contract contained in the ticket of ingation by a preponderance of evidence rests on the defendant. The presumption is that the death was not voluntary, and the defendant, in order to sustain the issue of suicide on his part, must overcome this presumption, and satisfy the jury that the death was voluntary."

This charge, approved by the Supreme Court, clearly told the jury that the burden of proof was upon the defendant to make out a case of suicide. Applying the principle of that case to the one at bar, we think it was sufficient for the plaintiff, in the first instance, to establish the death of Locke by external, violent, and accidental means. As Mr. Justice Harlan said, the principal facts to be established were external violence and accidental means producing death. The burden of proof was upon the plaintiff below to establish these facts.

The learned judge in the present case charged the jury that: "The plaintiff, by the very terms of the contract, must prove by a preponderance of the proof, three things: (1) That death was by external means; (2) that it was violent; (3) that it was accidental. He assumed the burden of proving these three things by bringing the suit, and the burden of proving them has stayed with him, and is with him now, and continues always with him until you end the case by your verdict. That the death was external and violent seems to be admitted, but that it was accidental is denied. There fore the plaintiff must prove it, and, unless you believe on the whole proof that it was accidental, he cannot recover."

We think this charge was correct. The death, under such circumstances, was by violent and external means, and the facts exclude every hypothesis except suicide or accident. This charge was in accordance with the decision of the Supreme Court of the United States, above quoted. As is well said in Mallory v. Travelers' Ins. Co. 47 N. Y. 52, 54, 7 Am. Rep. 410, quoted by Mr. Justice Harlan in McConkey Case, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Rep. 1360: "The presumption is against the latter [suicide]. It is contrary to the general conduct of mankind. It shows gross moral turpitude in a sane person."

This presumption must stand in the case, and be decisive of it, until overcome by testimony which shall outweigh the presumption. It casts upon the defendant who claims that the death was intentional the burden of establishing it by a preponderance of testimony. Upon this subject the court charged the jury, in substance, that the bur den of proving that he died by suicide was on the defendant, and, if the testimony was so evenly balanced that the jury could not decide by a preponderance of testimony, the plaintiff must recover.

It is also provided in the policy that it shall not cover death resulting wholly or partly, directly or indirectly, from certain causes, conditions, and acts,-among others, from injuries resulting from riding on the And again: "If the jury believe from the platform or steps of a railway car. It is evidence that Stephen P. Locke was a pas-claimed in this case that the proof was that senger on the train of cars of the Kansas Locke was riding on the rear platform of the City, Memphis, & Birmingham Railroad sleeping car, and that his death was a result company leaving Memphis about 9 P. M. on thereof. This policy was likely drawn, havthe 28th day of December, 1897, and sched-ing in view riding on platforms of cars not uled in the regular_time-table of the com-protected by doors such as are now in use on pany to arrive at Jasper, Alabama, about vestibule trains. It is not necessary, how4:02 A. M. of December 29, 1897, and that the train traveled on time, and that his dead body was found next morning, about 7 A. M., lying upon the cross-ties, with his head to the east and his feet to the west, between the rails of the same railroad, upon or near the west end of a trestle constructed in part of sawed square cross-ties, with sharp edges,

ever, to decide whether this clause would have effect, as regards such inclosed platforms. Assuming that there was some testimony to show that Locke, just before meeting a violent death, was riding on the platform, and that this risk was not assumed by the defendant, it might also be inferred that he was there for a temporary purpose. In

view of the testimony, and the conflicting in- to counsel in progress of the argument,ferences which might be drawn therefrom, it should be injured or killed, it could hardly became necessary to charge the jury upon be said that this condition of the policy was this point, and the court said: "What is violated because he was literally riding on meant by the phrase 'while riding on the the platform. Or, if one, having to look out platform or steps of any railway car?' The for himself, should momentarily step to the very literalism of the words would cover platform to see if he had reached his staevery possible injury or death which did not tion, could it be said that he was riding on take place wholly inside the car, and away the platform? These would be necessary from any platform or steps, while the car is purposes, in any fair sense of the words 'ridin motion. It seems to be conceded, how-ing on the platform.' It would be mere literever, by the defendant's counsel, that it was alism to hold such a temporary occupation not intended to have this rigid meaning, to be 'riding on the platform,' although it is when they admitted in argument that it per- not impossible that such a situation might mitted a passenger to pass across a platform be covered by a prohibition from 'standing' from one car to another. But in the special or ‘being' on a platform, as in the Minnesorequests that have been made for instruction ta case it was held that a waiting on the since the argument concluded, and especial- platform until the train should stop was ly by request 22, it is now claimed that 'rid- within the broader phrase. I am not willing on the platform or steps of a railwaying to say to you that any temporary occucar' means that, if any injury or death re-pation of the platform for the simple consults to the insured while he is on a plat-venience of the traveler would be permitted form of any railway car, the company is not by the condition of this policy, or that the liable.' The court does not think that the liability of the company would exist where phrase could have been intended to bear that the injury or death took place during such construction, and defendant's request 22 is convenient occupation of the platform; but, therefore refused. We have the authority without the least hesitation, the court may of several cases used in the argument that say to you that any necessary occupation of the phrase 'standing, being, or riding on a the platform which is temporary in its char platform or steps,' which is obviously a acter, and does not amount to that more perbroader phrase than 'riding on the platform manent occupation which might just as well or steps, will not be so rigidly construed as be had inside the car as on the platform, so defendant's request 22 would construe the far as the traveler's convenience is conlanguage under consideration. Because, cerned, would not be within the prohibition. says Judge Wallace, 'these words do not fair- The rule of law is that such an ambiguous ly refer to a transitory occupation of the expression as 'riding on the platform' or platform.' Sawtelle v. Railway Pass. As 'steps' will be construed most liberally for sur. Co. 15 Blatchf. 216, Fed. Cas. No. 12,- the holder of the ticket, and against the in392. Nor would being on the platform, for surance company. Wherefore the word 'ridrelief, when one was suffering from car sick- ing' must be limited to its ordinary sense ness or nausea, be held to be a voluntary of a more permanent occupation than mereexposure to unnecessary danger,' or 'riding ly standing or being on the platform for a on a platform,' as held in Marx v. Travelers' temporary, but a necessary, purpose. Ins. Co. 39 Fed. Rep. 321. These are exam-it is worth observation that, in the immediples of cases construing this phrase, which ately succeeding prohibition about the right seem to establish the principle of reasonable of way, the word 'being' is used in the interpretation that, although the insurance phraseology as above quoted, thus, 'while company has ample power to make its con- walking or being in the right of way, etc. tract what it pleases, in the absence of ex- This shows that he company, while press and ambiguous words, it will not be drafting the conditions, was careful of its understood to have forbidden that tempo- phraseology; and inasmuch as the familiar rary, transitory, and necessary occupation expression in similar policies theretofore exof the platforms which a traveler must risk isting used the language 'standing, being, or in the use of the cars and trains, for the riding,' there is some significance in the convenient prosecution of his journey. He omission of the words 'standing or being,' in may not occupy the platforms or steps for favor of the interpretation the court is now the purposes of 'riding' on the train as one giving to the word 'riding.' I conclude the would occupy a seat, or as one might occu- subject of the interpretation of the condipy by standing in the aisles on the inside tions about riding on the platform by saying of the car for riding on the train; but for to you: If you believe from all the testiany necessary purpose, certainly, and for mony in this case that immediately before any reasonably convenient purpose, proba- and at the moment Locke's body, designedly bly, which only required a momentary or or undesignedly, left the train, he was occutemporary or transitory 'being' or 'stand-pying the platform, in the sense of 'riding' on ing' or 'riding' on the platform or steps, the it, as above defined, his administrator cannot traveler may be on the platform without vio- recover; but if you believe from all the evilating this condition in the policy. For example, if one standing on a platform, wait-platform temporarily only, and for any necing to enter the door while the crowd before him were entering and being seated, as might be the case in a rush for the dining car,-to use a suggestion made by one of the jurors

And

dence that at that moment he was upon the

essary purpose, and not sufficiently prolonged in the occupancy to amount to riding' on it, such temporary occupancy would not be within the prohibition of the policy."