109 S.W. 89 (Mo.App. 1908), Dillon v. The Continental Casualty Co.

Citation:109 S.W. 89, 130 Mo.App. 502
Opinion Judge:ELLISON, J.
Party Name:ROBERT L. DILLON, Administrator, etc., Respondent, v. THE CONTINENTAL CASUALTY COMPANY, Appellant
Attorney:Manton Maverick and John & J. W. Cosgrove for appellant. Sam C. Major and W. M. Williams for respondent.
Case Date:April 06, 1908
Court:Court of Appeals of Missouri
 
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Page 89

109 S.W. 89 (Mo.App. 1908)

130 Mo.App. 502

ROBERT L. DILLON, Administrator, etc., Respondent,

v.

THE CONTINENTAL CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Howard Circuit Court.--Hon. Alexander H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

Manton Maverick and John & J. W. Cosgrove for appellant.

(1) The duties of assistant car inspector did not require deceased to jump onto and hang upon the outside ladder of a car and thus ride through a railroad yards in the night time where other cars were standing in dangerous proximity. Bacon v. Railroad, 143 Pa. St. 14. (2) The conduct of deceased in getting upon the side of a moving car in a railroad yards at night was gross negligence. Even if such be the custom, it is a dangerous one and affords no relief for the conduct of the deceased. Hughes v. Railroad, 127 Mo. 455; Alter v. Casualty Co., 108 Mo.App. 169. (3) James Dillon was not insured against injuries resulting from "jumping trains." He voluntarily chose to ride in a dangerous and hazardous place and position. Loesch v. Union Cas. & Surety Co., 176 Mo. 654; Schaub v. Railroad, 106 Mo. 74. (4) The real question is whether the deceased, James Dillon, did or did not receive the injuries, which resulted fatally, by "voluntary exposure to unnecessary danger or obvious risk of injury." Alter v. Casualty & Surety Co. , 108 Mo App. 169; Bean v. Employers' Liability Acc. Co., 50 Mo.App. 459; Overbeck v. Insurance Co., 94 Mo.App. 453; Loesch v. Casualty Co., 176 Mo. 654; Akin v. Railroad, 142 Pa. St. 47; Jamison v. Casualty Co., 104 Mo.App. 306; Bateman v. Insurance Co., 110 Mo.App. 443; Corcoran v. Railroad, 105 Mo. 399; Sargent v. Insurance Co., 112 Wis. 29. (5) Instruction number 1, asked by appellant, should have been given, as prayed. It was error to refuse it. See authorities cited under point IV. (6) Instruction numbered 8 should have been given. The custom of the deceased and of other employees of the M. K. & T. Ry. Co., could not vary the terms of the contract between deceased and appellant. Hughes v. Railroad, 127 Mo. 455; Alter v. Casualty Co., 108 Mo.App. 169; Partridge v. Insurance Co., 15 Wall. (U.S.) 573; 29 Am. & Eng. Ency. Law (2 Ed.), p. 436; 1 Joyce on Insurance, sec 247; Staluth v. American Guar. Co., 81 Mo.App. 627; Hughes v. Cash Register Co., 112 Mo.App. 101.

Sam C. Major and W. M. Williams for respondent.

(1) No error was committed by the trial court in permitting plaintiff to show that it was the custom and practice and was necessary for car inspectors and repairers in the performance of their duties to ride upon the cars from place to place in the railway yards at Franklin Junction. Defendant insured plaintiff's intestate while he was engaged in the business of a car repairer at that place and must be presumed to have intended to indemnify him against accidental injuries received while in the performance of the duties pertaining to his position. Insurance Co. v. Snowden, 7 C. C. A. 264, 58 F. 342; Burkhard v. Insurance Co., 102 Penn. St., 262; Follis v. Mutual Accident Co., 28 L. R. A. 78; Charlton v. Railroad, 200 Mo. 435. (2) The court below properly found that the evidence failed to show that deceased was aware...

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