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Tuttle v. Travellers' Insurance Company.

travelling there has no tendency to produce the injury, and is not to

But on the other hand,

be deemed a contributory cause thereof. if one who goes into a battle is hit by a bullet, or if one who goes up in a balloon is blown out to sea by the currents of air, or if one who makes a railroad track his path for travel is run over by a passing locomotive engine, he must ordinarily in any legal question be held to take the risk of those results. There is in each of those cases such an association of cause and effect, that the one must be held to have contributed to the other. To hold that the death of the assured in the present case did not happen in consequence of his exposure to the risk, but from a new force or power which intervened, would be to fritter away the language of the policy by metaphysical distinctions too fine to enter into the understanding or contemplation of parties engaged in the practical business of making a contract of insurance. We must assume that the assured read his policy, and was acquainted with its language and attached some practical meaning to it. See White v. Lang, 128 Mass. 598; s. c., 35 Am. Rep. 402; McGrath v. Merwin, 112 id. 467; s. c., 17 Am. Rep. 119; Norton v. Eastern Railroad, 113 Mass. 366; McDonald v. Snelling, 14 Allen, 290; Cluff v. Mutual Benefit Ins. Co., 13 id. 308, 319; s. c., 99 Mass. 317, 329; Harper v. Phonix Ins. Co., 19 Mo. 506.

Judgment on the verdict.

NOTE BY THE REPORTER.--In Burkhard v. Travellers' Ins. Co., Pennsylvania Supreme Court, Oct. 1, 1883, an accident insurance contract provided that no claim should be made for death or injury caused by voluntary exposure to unnecessary danger, or by walking or being on the bridge of any railway. A train on which insured was riding at night stopped on a bridge. He went to the front platform of the car in which he was riding, and stepped off and through a hole in the floor of the bridge, causing his death. Held, that he did not violate the provision of the policy, and the insurance company was liable on the contract for his death. The court said:

"To make him guilty of a 'voluntary exposure to danger,' he must intentionally have done some act which reasonable and ordinary prudence would pronounce dangerous. The uncontradicted evidence shows that several other passengers got out of the coach, and some of them in advance of the insured. They certainly apprehended no danger. It is customary for male passengers to alight when a train stops for any length of time. No notice was given to passengers that it was dangerous to get out of the coach where it stood. So far as appears, the bridge, with the exception of this hole, was well covered with plank and entirely safe. When the intestate alighted other passengers were standing on the bridge near the brakeman. The latter was sitting on timber that was lying on the foot-walk of the bridge, and was to be used in the repairs being made. The passengers had no knowledge of these repairs. The brakeman held his lantern so placed on the floor that another timber cast its shadow over the hole, making it impossible for the insured to see it. He could see that portion of the floor

Commonwealth v. Barnacle.

lighted by the lantern, and the passengers standing thereon. He could see the brakeman near them. He stepped out of the coach in plain sight of the brakeman. He had a right to suppose he could land on a floor as firm as that on which the others stood. Neither word nor sight gave him notice of danger. He did not approach the opening caused by the draw and was not injured thereby. It is true he voluntarily left the car, but a clear distinction éxists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist, yet the exposure thereto without any knowledge of the danger does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure was involuntary. The danger being unknown, the injury was aecidental. Accident is defined by Worcester to be an event proceeding from an unknown cause, or happening without the design of the agent; an unforeseen event, incident, casualty, chance. And by Webster, an event that takes place without one's forethought or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, casualty, contingency. In view of the unquestioned facts the death of the intestate was accidental. The danger was unknown. The injury was not designed. We think there was not such a voluntary exposure to danger as to fairly bring the act of the insured within the meaning of the exception."

In Stone's Admr's v. U. S. Casualty Co., 5 Vroom, 371, the court said:

"The circumstances were these: the assured was having a small barn put up, and while the same was building, had gone up to the second story to look on at the work. Stepping to one side he trod upon a joist, which from a concealed defect broke, and he was killed by falling to the ground. At the time of the accident he was heavily clad in two overcoats, and was said to be an awkward man. These facts do not show any disregard to his personal safety, on the part of the assured. There was no rashness or undue exposure in placing himself in the position described, and the breaking of the timber, which was the proximate cause of the death, was a pure accident. Besides, this was altogether a question for the jury, and they were instructed in the language of the charge to 'take all circumstances into consideration in determining, as a question of fact, whether his exposure was such as a prudent man would not subject him. self to, and whether he exercised that degree of care which would be required of a prudent man.' The verdict in favor of the assured, on this point, is amply warranted by the proofs."

See Bon v. Ry. Pass. Assurance Co., 56 Iowa, 664; s. c., 41 Am. Rep. 127

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On a trial for manslaughter, under the issue of self-defense, the defendant, to show that he acted under reasonable apprehension of bodily injury, may prove that the deceased was larger and stronger than he.

Commonwealth v. Barnacle.

VICTION of manslaughter. The opinion states the facts.

CONVICTION

W. B. Gale & J. P. Gale, for defendant.

G. Marston, attorney-general, for Commonwealth.

MORTON, C. J. This is an indictment for manslaughter, charging the defendant with the killing of one Thomas Barnacle, by stabbing him with a knife. The evidence tended to show that said Thomas attacked the defendant with a knife and fork. The defendant contended that he stabbed Thomas when this attack was made; and that he acted in self-defense, and under a reasonable apprehension that Thomas would do him great bodily harm. To prove this issue, he offered to show by a witness, who knew both Thomas and the defendant, that Thomas was a larger and more powerful man than the defendant. Upon the objection of the Commonwealth's attorney, the court rejected this evidence; and the defendant excepted.

It is well settled that if a man is attacked, he has the right to defend himself. If the attack is of such a character, and made under such circumstances, as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will effectually prevent the harm, he has the right to kill the assailant. In such cases therefore the questions whether there was reasonable cause to apprehend great bodily harm, and whether the defendant acted under such apprehension, are material issues. Commonwealth v. Woodward, 102 Mass. 155; Commonwealth v. O'Malley, 131 id. 423. It necessarily follows, that in the case before us, the question whether the defendant acted under a reasonable apprehension of great bodily harm to himself from the attack of Thomas, was a material issue. Any evidence which tends to prove this issue is competent. The jury could not intelligently pass upon this issue without being informed as to the character and circumstances of the attack. It · seems to us clear, that the fact that the assailant was a larger and more powerful man than the defendant has a bearing upon the issue. The test is whether the fact is, according to the general experience of mankind, capable of affording a reasonable presumption or inference as to the issue in dispute. The question whether a man has reason to apprehend danger from an attack must depend in some measure upon the size and strength of the assailant.

Commonwealth v. Barnacle.

If the assailant is a child, or a weak and effeminate man, much inferior in strength to the party assaulted, and unarmed, common experience teaches us that there is no cause to apprehend serious danger from the assault. On the other hand, if the assailant is a large and powerful man, whom the assaulted party could not successfully resist by his unaided strength, this fact would naturally create in his mind an apprehension of danger, which might justify him in using a deadly weapon for self-defense. Certainly it must be competent to show that the assailant was armed with a deadly weapon; for the same reason, it may be shown that he is armed by nature with a superior size and strength, which makes his attack irresistible and dangerous.

We are of opinion that the fact which the defendant offered to prove, that the said Thomas was a larger and more powerful man than the defendant, was competent, and should have been admitted. The Commonwealth relies upon the cases of Commonwealth v. Hilliard, 2 Gray, 294; Commonwealth v. Mead, 12 d. 167; and Commonwealth v. York, 7 Law Rep. 497, 507. In Commonwealth v. Hilliard, the question we have discussed does not appear to have been raised. The defendant there offered to show the general character of the deceased as a fighting, brutal man, of great strength; and the decision was that the evidence was too remote, the court saying that "the provocation under which the defendant acted must be judged of by the res gesta; and the evidence must be confined to the facts and circumstances attending the assault by the deceased upon the defendant." It does not decide that the defendant could not put in, as part of the res gestæ, the fact that the deceased was larger and more powerful than himself.

So in Commonwealth v. York, the defense being that the homicide was committed under provocation and in mutual combat, it was ruled at the trial that upon these issues evidence of the general character of the deceased as a quarrelsome man and as a prizefighter was not admissible. The question before us was not raised or considered.

In Commonwealth v. Mead, the court held that evidence tending to prove the great muscular strength of the deceased was incompetent. That case has not, we think, been followed by other courts, and has been much questioned by the profession. So far as it conflicts with our decision in the case before us, we feel constrained to overrule it. Exceptions sustained.

VOL. XLV. 41

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The mere cancellation of a will containing a clause revoking former wills does not revive a former will, but the subsequent declarations of the testator are competent to show that he meant to revive a former and existing will. (See note, p. 327.)

A

PPEAL from probate decree. The opinion states the case.

H. Kingman, for appellee.

E. Robinson, for appellant.

C. ALLEN, J. The two questions in this case are, first, whether the cancellation of a will, which was duly executed, and which contained a clause expressly revoking former wills, has the effect, as matter of law, to revive a former will which has not been destroyed or whether in each instance it is to be regarded as a question of intention, to be collected from all the circumstances of the case; and secondly, if it is to be regarded as a question of intention, whether subsequent oral declarations of the testator are admissible in evidence for the purpose of showing what his intention was. These are open questions in this Commonwealth. In Reid v. Borland, 14 Mass. 208, the second will was invalid, for want of due attestation. In Laughton v. Atkins, 1 Pick. 535, the second will was adjudged to be null and void, as having been procured through undue influence and fraud; and the whole decision went upon the ground that it was never valid, and could not be.

The first of these questions has been much discussed, both in England and America; and it has been often said that the courts of common law and the ecclesiastical courts in England are at variance upon it. See 1 Wms. on Executors (5th Am. ed.), 154-156, where the authorities are cited. The doctrine of the ecclesiastical courts was thus stated in 1824, in Usticke v. Bawden, 2 Add. Ecc. 116, 125 "The legal presumption is neither adverse to, nor in favor of, the revival of a former uncancelled, upon the cancellation of a later, revocatory, will. Having furnished this principle, the

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