178 S.W. 816 (Tex.Civ.App. 1915), 1432, Travelers' Ins. Co. v. Harris

Docket Nº:1432.
Citation:178 S.W. 816
Opinion Judge:HODGES, J.
Party Name:TRAVELERS' INS. CO. v. HARRIS. d
Attorney:Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, and McCord & Campbell, of Longview, for plaintiff in error. Lacy & Bramlette and Young & Stinchcomb, all of Longview, for defendant in error.
Case Date:May 28, 1915
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 816

178 S.W. 816 (Tex.Civ.App. 1915)

TRAVELERS' INS. CO.

v.

HARRIS. d

No. 1432.

Court of Civil Appeals of Texas, Texarkana.

May 28, 1915

Rehearing Denied June 10, 1915.

Error from District Court, Gregg County; W. C. Buford, Judge.

Action by Sallie Lou Harris against the Travelers' Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, and McCord & Campbell, of Longview, for plaintiff in error.

Lacy & Bramlette and Young & Stinchcomb, all of Longview, for defendant in error.

Page 817

HODGES, J.

On December 9, 1913, the defendant in error, Sallie Lou Harris, filed this suit in the court below against the plaintiff in error, to recover the sum of $15,940. The action was upon an accident policy theretofore issued by the plaintiff in error to her husband, Geo. V. Harris, in which the defendant in error was named as the beneficiary. It was alleged that Harris died July 9, 1912, as the result of injuries inflicted by a railroad train in the city of Longview, Tex. The plaintiff in error answered by general demurrer and special exceptions to the claim for damages and attorney's fees, and specifically denied each of the allegations of the policy, except such as were expressly admitted. In its answer the plaintiff in error claimed that, at the time Harris was injured, he was attempting to board a moving train using steam as a motive power, and was injured while at a place not intended for passengers; that the injury was due to a voluntary exposure to unnecessary danger, from voluntary overexertion; and that the injury was received at a time when Harris was upon the roadbed of a railroad. The provisions of the policy which exempted the plaintiff in error from liability for injuries occurring under the conditions mentioned were specially pleaded. A trial before a jury resulted in a verdict and judgment in favor of the defendant in error for the sum of $6,000 as the sum due upon the policy, $720 as damages, and $1,000 as reasonable attorney's fees.

The group of assigned errors first presented complains of the refusal of the court to give peremptory instructions in favor of the plaintiff in error. There appears to be practically no conflict in the evidence as to the conditions under which the accident occurred. The testimony shows that on the night of July 9, 1912, Geo. V. Harris was at the railroad depot in the city of Longview, Tex., and was expecting to go to Dallas on the Texas & Pacific train, which left shortly after midnight. Previous to the departure of the train (just how long does not appear) he went across the railroad yards to the north side to a restaurant, where he purchased a glass of milk and some other articles. He walked out of the restaurant while the train was at the station, and the bell was ringing, indicating that it was about to depart. Harris walked in the direction of the train. He had to travel about 180 feet in order to reach the train. Immediately after the train departed, he was found sitting on the ground, within a few feet of the north rail of the track upon which the train had been standing, with one of his legs cut off between the ankle joint and the knee. He died shortly afterwards from the effects of that injury. Proof of loss was presented, and payment demanded, but refused upon the grounds set out in the plaintiff in error's answer. The only direct evidence as to what Harris did after leaving the restaurant, and how he happened to be injured, is to be gathered from the statements made by him shortly afterwards to those who came to his assistance. One of the witnesses testified that they carried Harris into the express office, where he stated that he received the injury while trying to attract the attention of the porter, who was standing in the vestibule of the car, in order to get him to open the door so that he (Harris) might get on. He stated that at the time Harris appeared to be very much excited, or badly frightened and confused. He would not converse on any one subject any length of time, and his talk was disconnected. Another witness testified that Harris gave this account of the accident. He was running to catch the train, and slipped and fell. He had been over to the restaurant to get something to eat. A third witness testified: That Harris stated he...

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