This opinion, prepared by Mr. Justice William Allen, was approved by the court in his lifetime.
The promise of the defendant was to pay a certain sum in the event of the death of the plaintiff’s intestate, occasioned by “ bodily injuries effected through external, violent, and accidental means.”
There are nine provisos in the certificate, the last of which is, that “ no suit or proceeding at law or in equity shall be brought to recover any sum herein, unless the same has been first referred to the arbitration of just and competent men.” It was admitted that there had been no reference to arbitration of the plaintiff’s claim, and that the plaintiff never requested such arbitration. The first exception is to the refusal of the court to rule that, for that reason, the action could not be maintained. The promise is, not to pay the award, but to pay the sum named, and the proviso does not make the award a condition *83precedent to the promise to pay, but a mode of enforcing that promise. It is well settled that such an agreement is no bar to an action on the promise. Reed v. Washington Ins. Co. 138 Mass. 572, and cases cited.
The certificate also contains the provisos, that “ members are required to use all due diligence for personal safety and protection,” and that “no claim shall be made under this certificate . . . when the death or injury may have happened in consequence ... of any voluntary exposure to unnecessary danger.” .These provisos constitute matter of defence, and the burden of proving them is upon the defendant. Freeman v. Travelers’ Ins. Co. 144 Mass. 572. The other exceptions are to the refusals of the court to rule upon the undisputed evidence in the case, and upon the hypothetical findings of the jury upon the evidence, that the defence of want of due diligence or of voluntary exposure to unnecessary danger by the deceased was made out, and to instruct the jury to find a verdict for the defendant.
After the ten o’clock train left, the dead body of the plaintiff’s intestate was found on the track where the train had stood, in such a situation and condition as showed that he had been run over by the train and instantly killed. Track No. 8 was the easterly track, and was near the easterly wall of the train-house. A platform extended from the wall toward the track so far that a car upon the track would overhang the platform about six inches. The distance from the wall to the edge of the platform was about five and a half feet, but there were girders extending inward from the wall about three feet, so that the distance from the face of the girders to the edge of the platform was about two and a half feet. There was evidence tending to prove that the plaintiff’s intestate, before ten o’clock in the forenoon, was waiting in the train-house of a railroad station in Boston to take a train that left at a quarter past ten on track No. 7, and that he knew that a train left on track No. 8 at ten o’clock.
The defendant contended, and there was evidence to prove, that the platform east of the tracks was intended for the use of the train hands, and not for passengers, though it was sometimes used by them, and that the place intended for and generally used by passengers for taking and leaving cars on track *84No. 8 was the platform on the westerly side of that track, between it and track No. 7.
The supposition that the deceased fell in attempting to get on or off any platform of the cars while they were in motion, seems inconsistent with the evidence. The only theory of accidental injury consistent with the evidence seems to be that the deceased was thrown or fell from the platform east of the cars upon the rail between the front and rear trucks of the forward car, about the time the cars started, and before they had moved twenty feet. There was no evidence of the cause of his fall, and it cannot be contended that the mere fact that he fell under the car is a defence. The real contention of the defendant, expressed in different forms in its prayers for instructions, is that the mere fact that the deceased was in a dangerous place, (on the platform east of the track,) or, as stated in one prayer for instructions, doing a dangerous act, (leaving a car while it was in motion,) is, as matter of law, conclusive proof that he did not use all due diligence for personal safety and protection, and that he voluntarily exposed himself to unnecessary danger.
This is not an action against the railroad company in which the mutual rights and duties of a person injured and the company are involved.
As regards the defendant, the deceased had a right to go upon the platform, and to examine the wall of the building, and the girders, and the platform, and the cars standing upon the track, and to enter and leave them. None of these acts would of itself be evidence of want of due diligence for personal safety, or of voluntary exposure to unnecessary danger. Any of them might be done carefully or carelessly. The manner and circumstances of the act would give character to it.
The facts that the deceased was upon the platform, and that he was injured in the manner shown, clearly do not constitute negligence in law, or afford conclusive evidence of negligence.
The defendant asked for instructions upon the hypothesis that the deceased fell while leaving the car when it was in motion. There was no evidence that he so fell, but, if it could be inferred, it would not be conclusive of his negligence. That would depend upon the circumstances, and there would be no presump*85tian that the circumstances were such as to make it negligent. If the jury could surmise that he left the car when it was in motion under circumstances which rendered the act negligent, they could equally well surmise that he left it under circumstances which would show that the act was not negligent. It may be said, in general, in regard to each of the defendant’s prayers for rulings and instructions, that there is no evidence of the act of the deceased proximate to his injury, and of course no evidence of the circumstances which characterize the act as negligent or otherwise. If the jury infer an act, they are not, without evidence, at liberty to infer the circumstances which made the act negligent. The jury could not properly base their verdict upon particular facts found without evidence. The real question was whether the facts directly proved by the evidence, and those to be inferred from them, sustained the burden of proof which was upon the defendant, and this was clearly a question for the jury and not for the court, unless the court could rule that there was no"t sufficient evidence. The instructions given were sufficiently favorable to the defendant.
Exceptions overruled.
Memorandum.
On the eighteenth day of June, 1891, the Honorable James Madison Barker, one of the Justices of the Superior Court, was appointed a Justice of this Court, in place of Mr. Justice William Allen, deceased, and took his seat upon the bench on the twenty-sixth day of the same month, at a session of the full Court then held at Boston in the county of Suffolk.