14 N.Y.S. 728, Williams v. United States Mut. Acc. Ass'n

Citation:14 N.Y.S. 728
Opinion Judge:Mayham, J.
Party Name:Williams v. United States Mut. Acc. Ass'n
Attorney:Winsor B. French, for appellant. Edgar T. Brackett, for respondent.
Judge Panel:Argued before Learned, P. J., and Landon and Mayham, JJ. Landon, J., concurring. Learned, P. J., dissenting.
Case Date:May 21, 1891
 
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Page 728

14 N.Y.S. 728

Williams

v.

United States Mut. Acc. Ass'n

Supreme Court of New York, General Term, Third Department

May 21, 1891

          Appeal from circuit court, Saratoga county.

         Action by Frances E. Williams against the United States Mutual Accident Association on an accident insurance policy issued by the appellant to Alonzo C. Williams, payable in case of loss to his wife, who brings this action. The policy insured, subject to the conditions contained in it, against personal bodily injury, during the continuance of membership, through external violence and accidental means, designating the sums allowed for certain specified injuries, and providing that, "if death shall result from such injuries alone, and within ninety days, the association will pay $ 5,000 to Frances E. Williams, his [insured's] wife, or to the survivor of them, or, in event of her prior death, according to the by-laws." The policy also provided, among other exceptions, that "the insurance, under this certificate, shall not extend to or cover * * * suicide, felonious or otherwise, sane or insane, sunstroke, or freezing, riding, driving races, voluntary exposure to unnecessary danger; nor extend to or cover intentional injuries inflicted by the insured, or any other person, or where the accident, injury, or death happens while the insured is under the influence of intoxicating drinks or narcotics, or in consequence thereof, or while or in consequence of violating the law of any company or corporation, or while employed in mining, blasting, or wrecking, or in the manufacture, transportation, or use of gunpowder, or any other explosive compound, (unless insured to cover such occupation,) standing or riding upon the platforms of any conveyance, using steam or electricity as a motive power, or entering or attempting to leave such conveyance while the same is in motion, or walking on the road-bed or bridge of any railroad, are hazards not contemplated or covered by this insurance." The answer set up that the injury complained of occurred in consequence of acts of the insured within some of the above exceptions.

         The evidence shows that, between 6 and 7 o'clock in the evening of the 22d of November, 1890, the insured was struck by a locomotive engine on the Adirondack Railroad, at the crossing on Church street, in the village of Saratoga Springs, and injured to such an extent that he died from the injury in a few hours. The railroad track crosses on Church street, on grade, at the point where the injury occurred; and immediately before the injury the insured crossed the railroad track, going in an easterly direction, and, about 100 feet from the railroad on the east side, met two men, who were going in the direction of the railroad track, and in a conversation with them said: "Boys, look out for the engine; may be he will catch you;" to which one of the persons addressed replied, "I am not afraid, my life is insured." A train of cars was then slowly approaching from the south. Deceased started east, and the persons whom he met proceeded west across the track. The engineer running the train testified, in substance, that "as his north-bound train approached Church street, at a rate of speed of about four miles per hour, and when about twenty-five feet from the crossing, the deceased started, and went on the track, and, if he had kept on walking, he would in all probability have gone across; but the next I saw of him he...

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