cities, or steeples 332 and towers on churches and similar edifices, it was not uncommon, except, perhaps, in the mode of its construction. It was, however, a lawful structure.

There is no law forbidding one from building to any height that he chooses on his own premises, and there is nothing to show that the chimney violated any city ordinance. But it evidently was built so near the line that when it fell it fell onto the adjoining premises. The proximate cause of its fall was the gale. If the gale had been of such unprecedented force that the experience of the people in that vicinity furnished no reason to anticipate its occurrence, then the doctrine of vis major or inevitable accident well might apply. But there was testimony to show, not only that such gales were not infrequent during the spring and winter months, but that they sometimes attained a greater velocity. The defendants were bound to have regard to these facts in building and maintaining their chimney. If they had placed or maintained it so that, if it fell, it would fall upon and injure the adjoining premises, they were bound, in the exercise of proper care, to construct it so that it would withstand any gales which experience showed were reasonably to be anticipated in that locality: Gray v. Harris, 107 Mass. 492; 9 Am. Rep. 61. To build and maintain a chimney or other structure so that it is liable to be blown down by a not infrequent gale, and so that if it is blown down it will fall upon and injure a neighbor's property, is like maintaining a building so out of repair that it is liable to fall, and ultimately does fall upon and injure the adjoining premises. Such a building clearly would be a private nuisance. The defendants are not to be regarded as insurers, and consequently would not be liable if the fall occurred through a hidden defect which no foresight or examination could have discovered or prevented. And their liability may not be like that of those who keep animals whose known habit is to stray, or who keep dangerous animals which are a source of danger in themselves to others; or who store gunpowder in thickly settled neighborhoods, or who blast rocks on their own premises, but under such circumstances that the flying fragments may damage others, and who in a sense may be said to impart to them their force and direction; or who construct buildings so that they will discharge snow, ice, or water upon adjoining prem333 who cause ises or upon those passing in the street; or noise, or smoke, or dust, or fumes, or filth, which escape and

injure the health, or materially interfere with the comfort and enjoyment of others. But parties erecting upon their own land chimneys or walls, or other structures so situated that they may fall upon and injure the persons or property of others, are bound, at their peril, to use proper care in their erection and maintenance. By proper care is meant such degree of care as will prevent injuries from any cause except those over which the party would have no control, such as vis major, acts of public enemies, wrongful acts of third persons, and the like, which human foresight could not reasonably be expected to anticipate and prevent. If, for instance, one chooses to build upon a quicksand a structure so near the line that if it falls it will fall upon and injure the adjoining premises, or to hang out a lamp over the highway, it is reasonable and just that he should be bound, at his peril, to use all known devices to make the foundation secure, or to keep the lamp from falling.

The duty thus resting upon the defendants was one which they could not fulfill by the employment of a competent mason to examine the chimney, and by relying upon his opinion. As far as it went, it was an absolute duty, and nothing short of actual performance of it, or a fall of the chimney due to some one of the excepted causes, would excuse them. It is almost needless to add that the fall of the chimney, unless caused by some one or more of the excepted causes, naturally would lead to the inference of an omission of duty in building or maintaining it. The following authorities may be cited, which support, in whole or in part, the principles above laid down as applicable to this case. The collection is not intended to be exhaustive: Ball v. Nye, 99 Mass. 582; 97 Am. Dec. 56; Wilson v. New Bedford, 108 Mass. 261; 11 Am. Rep. 352; Gray v. Boston Gas Light Co. 114, Mass. 149; 19 Am. Rep. 324; Mahoney v. Libbey, 123 Mass. 20; 25 Am. Rep. 6; Gorham v. Gross, 125 Mass. 232; 28 Am. Rep. 224; Mears v. Dole, 135 Mass. 508; Moreland v. Boston etc. R. R., 141 Mass. 31; Khron v. Brock, 144 Mass. 516; Smethurst v. Barton Square Church, 148 Mass. 261, 12 Am. St. Rep. 550; Nichols v. Marsland, L. R. 10 Ex. 255; 2 Ex. Div. 1; Tarry v. Ashton, 1 Q. B. Div. 314; Nitro Phosphate etc. Co. v. London etc. Co., 9 Ch. Div. 503, 515; Lawrence v. Jenkins, L. R. 8 Q. B. 274; Bensen v. Suarez, 334 28 How. Pr. 511; Mullen v. St. John, 57 N. Y. 567; 15 Am. Rep. 530; Gagg v. Vetter, 41 Ind. 228; 13 Am. Rep. 322; Scott v. Bay, 8

Md. 431; Tiffin v. McCormack, 34 Ohio St. 638; 32 Am. Rep. 408; Cooper v. Randall, 53 Ill. 24; Cahill v. Eastman, 18 Minn. 324; 10 Am. Rep. 184; Hannem v. Pence, 40 Minn. 127; 12 Am. St. Rep. 717; Phinizy v. Augusta, 47 Ga. 260; Georgetown etc. Ry. Co. v. Eagles, 9 Col. 544; Kinnaird v. Standard Oil Co. 89 Ky. 468; 25 Am. St. Rep. 545. See, also, Wood on Nuisances, 3 ed., secs. 109, 110, 118, 119; Pollock on Torts, 393, 394.

It is also to be observed, though we do not lay much stress upon it, that there is nothing to show that the chimney might not have been built farther from the plaintiffs' premises, or of a less height.

The remaining question is whether the instruction requested by the plaintiffs was sufficient to call for an instruction as to the rule of responsibility by which the defendants were bound. We think that, though not expressed with entire precision, it was. The plaintiff's were not entitled to have the instruction given as requested, but they were entitled to have the rule of law stated by which the liability of the defendants was to be determined: Foss v. Richardson, 15 Gray, 303; Brightman v. Eddy, 97 Mass. 478; King v. Nichols, 138 Mass. 18. For reasons already given, the instructions, in the opinion of a majority of the court, did not adequately express the duty and obligation which rested upon the defendants. Exceptions sustained.

REAL PROPERTY-LIABILITY OF OWNER FOR INJURIES CAUSED BY UNSAFE CONSTRUCTIONS THEREON.-The owner of real estate has the right to erect such buildings or other structures thereon as he may please, and may put the premises to any use which may suit his pleasure, provided he does not in so doing imperil others: Crawford v. Topeka, 51 Kan. 756; 37 Am. St. Rep. 323. One owner of land is not liable to his neighbor for damages resulting to the latter's land from acts done by the former upon his own land, unless the acts are negligently done or the damages are the natural and probable consequences of such acts: Gregory v. Layton, 36 S. C. 93; 31 Am. St. Rep. 857, and note. The following cases hold the owner of land liable for injuries to adjoining property caused by the falling of weakened or defectively constructed walls: City of Anderson v. East, 117 Ind. 126; 10 Am. St. Rep. 35, and note; Sessengut v. Posey, 67 Ind. 408; 33 Am. Rep. 98, and note; Schwartz v. Gilmore, 45 Ill. 454; 92 Am. Dec. 227. See, also, the extended notes to the following cases: Radcliff v. Mayor, 53 Am. Dec. 866; Hay v. Cohoes Co., 51 Am. Dec. 282, and St. Peter v. Denison, 17 Am. Rep. 263.

ANTHONY V. MERCANTILE MUTUAL ACCIDENT AS

SOCIATION.

[162 MASSACHUSETTS, 854.]

INSURANCE-ACCIDENT-BURDEN OF PROOF.-Under a policy agreeing to pay a specific sum on proof of the death of the insured from bodily injuries effected through external, violent, and accidental means, provided, always, the death shall not have been produced by any of various acts enumerated in the policy, the burden of proof that the death arose from one of the excepted causes must be assumed by the insured, after the plaintiff has established death from accident.

JURY TRIAL-INSTRUCTIONS TO FIND IN FAVOR OF THE PARTY ON WHOM THE BURDEN OF PROOF RESTS CAN BUT RARELY BE GIVEN.-It is only when no inferences are possible from the testimony, except those which lead to one conclusion, that the jury can be required to find that a proposition has been affirmatively established.

INSURANCE AGAINST ACCIDENT-JURY TRIAL.-Though the evidence tends strongly to the inference that an assured when injured by an accident was incurring a risk prohibited by the policy, yet the court will not instruct the jury, as a matter of law, to find for the insurer, if it is conceivable that he was injured while not incurring such risk.

E. Avery & A. E. Avery, for the defendant.

A. N. Lincoln, for the plaintiff.

355 KNOWLTON, J. The plaintiff claims under a policy of insurance, whereby the defendant promised to pay her five thousand dollars on proof of the death of her husband, William 356 A. Anthony, from "bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the conditions" recited therein. The testimony in regard to the material facts was uncontradicted. William A. Anthony was a passenger on a train on the Colorado and Midland Railroad. He was seen in his usual health in one of the cars of the train late in the evening of September 3, 1891, just before it reached Granite, Colorado, which was a station at which trains were accustomed to stop. He had a ticket for Denver, a place to which the train was going. The train stopped at Granite to take the mail. The night was dark, and there was no light on the platform at the station. The train started slowly, and when it had gone not more than thirty to fifty feet he was discovered on the ground between the platform and the nearest rail of the track, with his legs crushed by the wheels of one of the trucks which had passed over them. He survived about four hours, being unconscious most of the time, and then died from the injury.

No witness saw the accident, and nothing more was shown in regard to the cause of it.

The policy contains numerous conditions, which immedi ately follow the words "Provided, always," among which are these: "No claim shall be valid under this certificate when the death or injury may have been caused by dueling, fighting, . . . . or when the death or injury may have happened in consequence of war or invasion, or of riding or driving races, or of any voluntary exposure to unnecessary danger, hazard, or perilous adventure. . . . . Standing, riding, or being upon the platforms of moving railway-coaches other than street-cars, or riding in any other place not provided for the transportation of passengers, or entering, or attempting to enter or leave, any public conveyance using steam as motive power while the same is in motion,

are hazards not contemplated or covered by this certificate," etc.

The only question reserved by the report is whether there was evidence to warrant the submission of the case to the jury. This question may be divided into two branches: first, whether the burden of proof is on the defendant, after the plaintiff has shown that the injuries were effected "through external, violent, and accidental means," to show that they resulted from some of the causes specified in the conditions as not within the 357 insurance, or on the plaintiff to show that they did not; 2. If the burden of proof is on the defendant, ought the judge to have instructed the jury that the the burden was sustained, and that their verdict must be for defendant.

The question in regard to the burden of proof has been considered and practically decided in previous cases: Freeman v. Travelers' Ins. Co., 144 Mass. 572; Coburn v. Travelers' Ins. Co., 145 Mass. 226; Badenfeld v. Massachusetts Accident Assn. 154 Mass. 77. The substance of the contract is to pay if death results from injuries effected through external, violent, and accidental means, with a proviso stating many exceptions, most of which depend upon the subsequent conduct of the insured. While the use of the words "Within the intent and meaning of the conditions herein recited" may have been intended to have the same effect as if all the matters contained in the conditions had been written into the sentence descriptive of the risks, and as if the general description of the risks had been in affirmative words which would not include any of these excepted cases, and while there is