The policy insures J. J. Murray against bodily injuries “ effected through external, violent, and accidental means, within the intent and meaning of this contract and the conditions hereunto annexed,” &c. After the principal clause of the policy, five provisos and eight conditions follow. The second proviso is, “ Provided always, that this policy is issued and accepted subject to all the provisions herein contained or referred to,” &c. The third proviso is, “ That this insurance shall not extend to any bodily injury .... when the death or *576injury may have happened in consequence of . . . . voluntary exposure to unnecessary danger, hazard, or perilous adventure,” &c. The conditions are introduced by the following clause: “ Claims under this policy are payable only at the company’s office in Hartford, and this policy is subject also to the following conditions.” The first condition is, “ The party insured is required to use all due diligence for personal safety and protection, and to notify the agent writing this polic)', immediately and in writing, of any change from the occupation, profession, or employment under which this insurance is granted,” &c.; and, by the last condition, “ The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this policy, are conditions precedent to the making of this contract.” This last condition cannot take effect universally, because many of the provisos and conditions relate to matters which must happen, if at all, after the making of the contract.
Clearly there was evidence for the jury that Murray received bodily injury through external, violent, and accidental means; and that he did not voluntarily expose himself to unnecessary danger. He was rightfully upon the railroad track under his employment. The questions involved in the exceptions are, whether the' burden of proof was on the plaintiff to show that Murray used “all due diligence for personal safety and protection,” and whether there was sufficient evidence for the jury to warrant them in finding this as a fact. A majority of the court are of opinion that the burden was on the defendant to show that Murray bad not used all due diligence fo'r his personal safety and protection. So far as this first condition is concerned, the policy means that the company insures Murray against bodily injuries effected through external, violent, and accidental means, provided, however, and subject to the condition,'that the amount insured shall not be payable unless Murray uses “ all due diligence for personal safety and protection.” The defendant’s liability is to be determined by the contract; independently of the special provisions of the contract, contributory negligence on the part of Murray would not be a defence; and, by the use of the word “ accidental,” injuries to which the negligence of Murray contributed are not excluded from the protection of the policy. Schneider v. Provident Ins. Co. 24 Wis. *57728. Trew v. Railway Passengers' Assur. Co. 6 H. & N. 839. Providence Ins. Co. v. Martin, 32 Md. 310. Stone v. United States Casualty Co. 5 Vroom, 371.
In Sohier v. Norwich Ins. Co. 11 Allen, 336, after the description in the policy of the property insured, this clause was inserted: “ This policy not to cover any loss or damage by fire which may originate in the theatre proper.” It was held that the burden was on the plaintiff to show a loss not originating in the theatre proper. The court said: “ If that clause can be regarded as a proviso, that is, a stipulation added to the principal contract, to avoid the defendants’ promise by way of defeasance or excuse, then it is for the defendants to plead it in defence, and support it by evidence. But if, on the other hand, it is an exception, so that the promise is only to perform what remains after the part excepted is taken away, then the plaintiff must negative the exception to establish á cause of action. It is not always easy to determine to which class, whether of provisos or exceptions, a particular stipulation belongs; and this one is certainly very near the line.” The court held it to be an exception, sajdng that “ the provisos are set forth together in a different part of the instrument.”
In Kingsley v. New England Ins. Co. 8 Cash. 393, the policy recited that Kingsley had paid the premium, &c., for insuring his paper-mill, “ on condition that the applicant take all risk from cotton waste,” in consideration whereof the company insured the property in the sum of two thousand dollars. The court held that the burden was not on the plaintiff to show that the loss occurred in some other way than from cotton waste; that the clause was not an exception, but a proviso; and that the defendant must set it up in defence, and support it by evidence.
The rule of pleading, in declaring upon a contract which contains an exception, or a proviso, or a condition, is stated in Commonwealth v. Hart, 11 Cush. 130, 134, as follows: “ If such instrument contain in it, first, a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something that would otherwise be included in it, a party, relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and *578distinct clause which operates as an exception; but if the exception itself be incorporated in the general clause, then the party-relying on it must, in pleading, state it together with the exception.” It is a general rule of the law of evidence, that it is necessary for a party to prove the substantive facts which he is required affirmatively to aver in his pleading.
It is true that the policy in the case at bar only insures against bodily injuries effected by the means described, “within the intent and meaning of this contract, and the conditions hereunto annexed,” but this does not change the nature of the conditions. They still take effect as conditions, and the insertion of these words in the principal clause of the contract does not vary the legal effect of the contract. The condition we are considering is essentially an executory stipulation, in the form of a condition, that Murray shall use all due diligence for his personal safety and protection, and it is the breach of this condition by Murray which the defendant sets up as a defence. We are not aware that it has ever been held that the introduction "of the words we have quoted, or of other similar words, into the principal clause of a policy of insurance incorporates into this clause the conditions of the policy, within the meaning of the rule- of pleading we have stated; and in some of the decisions where it has been held that the defendant must plead, or that the burden of proof was on him to show, that a representation was false, or that a stipulation contained in a condition had not been complied with, the policy contained these or similar words in the principal clause. Every case depends upon the nature of the stipulation or condition, as well as upon the form of it. This condition does not differ in its character from the provision in life-insurance policies, that they shall be void, or that the amount insured shall not be payable, if the assured shall die by his own hand. The burden of proving "the breach of such a provision is on the company; and we think that the ruling in the present case upon the burden of proof was erroneous. Jones Manuf. Co. v. Manufacturers' Ins. Co. 8 Cush. 82. Daniels v. Hudson River Ins. Co. 12 Cush. 416, 426. Haskins v. Hamilton Ins. Co. 5 Gray, 432. Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541. Orrell v. Hampden Ins. Co. 13 Gray, 431. Cluff v. Mutual Benefit Ins. Co. 13 Allen, 308; and 99 Mass. 317. *579Hodsdon v. Guardian Ins. Co. 97 Mass. 144. Campbell v. New England Ins. Co. 98 Mass. 381. Peirce v. Cohasset Ins. Co. 123 Mass. 572. Germain v. Brooklyn Ins. Co. 30 Hun, 535. Bedman v. Ǣtna Ins. Co. 49 Wis. 431. Grangers' Ins. Co. v. Brown, 57 Miss. 308.
In an action upon a policy which contains many provisos and conditions, there is a practical wisdom, which courts have recognized, in compelling the insurance company to allege and prove the want of compliance with any particular proviso or condition on which it relies. Piedmont Ins. Co. v. Ewing, 92 U. S. 377.
The court refused to rule that there was not sufficient evidence to warrant the jury in finding that Murray used due diligence ; and to this the defendant excepted. It is evident that this refusal, if erroneous, has not harmed the defendant, because the burden of proof was upon it.
We cannot say that the witness Doody had not sufficient experience to justify the court in permitting him to testify as he did. His evidence had some tendency to show that the defendant’s witness, Mitchell, had not testified correctly, and that he had not exercised due care in stopping the train, and it had perhaps some relevancy to the matter in dispute, which was whether Murray was injured through his own fault, or through that of the managers of the train. Exceptions overruled.