Travelers' Ins. Co. v. Harris

• Citation: 178 S.W. 816
• Decision Date: 28 May 1915
• Docket Number: (No. 1432.)
• Parties: TRAVELERS' INS. CO. v. HARRIS.<SMALL><SUP>†</SUP></SMALL>
• Court: Court of Appeals of Texas

178 S.W. 816

TRAVELERS' INS. CO. v. HARRIS.^†

(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.

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 had been over to the hotel, went to the depot, and asked some one about the train, and was told when it would probably be there. That he thought he had time enough to go across the track to a restaurant, and started over there. He got a piece of gum and a glass of milk, and started out of the door, and when he got outside he heard the bell ringing, and looked up and saw the train fixing to pull out. That he ran over there to try to catch the train, and slipped and fell, and his leg was cut off. That Harris also stated that he could see the porter and some people on the train, and he tried to attract some one's attention. This witness did not undertake to give Harris' exact words, but admitted that he could only repeat the substance of what was said. A fourth witness testified that, after going to Harris, some one in the crowd asked how the accident happened, and Harris said he had been over to the junction to get some gum, and as he came out the train was pulling up, and he saw it had him headed off before he could get around it, and he made for the north side and ran down and tried to catch, missed his handhold, and his foot slipped over the rail. Harris also said he could see the porter standing up in the door, and his intention was to attract the porter's atention and get him to open the door so he could get on and not miss the train. Other wtinesses testified to substantially the same statements as having been made by Harris upon that occasion. Several witnesses stated that Harris spoke of having a lame leg. The testimony further showed that the train which caused the injury consisted of four or five cars, the passenger coaches having vestibuled doors, and that those doors were usually kept closed on the north side at Longview station, the south being the side provided for passengers to get on and off. Harris was 51 years of age, was 5 feet 7 inches high, and weighed about 175 pounds. The defendant in error offered evidence to show that he was a man of prudent and careful habits.

It is contended that, in view of this evidence, the defendant in error was not entitled to recover, because it conclusively appears that the accident resulted from conduct on the part of Harris and under conditions which exempted the insurance company from liability. The policy of insurance contained the following provisions, upon which that defense is based: Under the head of "Provided," and in the last subdivision, the following language is used:

"This insurance shall not cover disappearance or suicide, sane or insane, or injuries of which there is no visible mark, etc.; * * * nor shall it cover accidents, injuries, death, loss of limb or sight, or disability, resulting wholly or partly, directly or indirectly, from intoxication, * * * from voluntary exposure to unnecessary danger; * * * nor (except as incident to the occupation of railway employés insured as such) shall this insurance cover accidents, injuries, death, loss of limb or sight, or disability, resulting directly or indirectly from entering or trying to enter or leave a moving conveyance using steam as a motive power (except cable and electric street cars), or happening while being in any part thereof not provided for occupation by passengers or while being on a railway bridge or roadbed."

As preliminary to the discussion of the defense here presented, it is proper, and perhaps essential, to first determine upon whom rested the burden of showing the particular cause of the accident. The plaintiff in error contends that the clauses of the policy referred to above being exceptions to the general risk assumed, but parts of the contract of insurance, it devolved upon the defendant in error to not only prove an accidental death or...