Small v. Travelers' Protective Ass'n
| Decision Date | 14 November 1903 |
| Citation | 45 S.E. 706,118 Ga. 900 |
| Parties | SMALL v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An attempt to board a train of cars running at eight or ten miles an hour, by a young, strong, and active man, with experience as a "traveling man" in boarding and alighting from moving cars, is an exposure to "obvious risk of injury," within the meaning of an accident insurance policy which excepts the insurer from liability for injuries received as a result of "voluntary or unnecessary exposure to danger, or to obvious risk of injury," and, when made merely for the purpose of avoiding the delay incident to missing the train, will prevent a recovery against the insurer for injuries received in consequence of such attempt.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by W. E. Small against the Travelers' Protective Association of America. Judgment for defendant, and plaintiff brings error. Affirmed.
Hardeman Davis, Turner & Jones, for plaintiff in error.
Roland Ellis and J. E. Hall, for defendant in error.
Small brought an action against the Travelers' Protective Association of America upon a policy of accident insurance which it had issued to him. A rule of the association, by which the plaintiff was bound, provided that the association should not be liable for injuries incurred by a member as the result of "voluntary or unnecessary exposure to danger, or to obvious risk of injury." As to the circumstances under which the plaintiff received the injuries which were the foundation of his claim against the association, he testified that at the time he was injured he was 23 years old; was in good health, strong, and active that he was a traveling man, and, during his experience as such, had become very efficient in mounting and dismounting from moving trains; that on the occasion in question he had placed his baggage on the train, and had crossed the street to look after his trade, and when the time arrived for the train to leave he returned to take it, but just at that time a freight train came in between him and the coach in which he had placed his baggage, and as the passenger train started it was necessary for him, in order to catch it, to go around the freight train; that he ran down the track beside the freight train for about 60 yards, and, just as the freight engine passed him, the passenger train came by, and he attempted to board it. He was then about 75 yards from the depot, the place he usually mounted the train, though he had often boarded the train at the place where he attempted to do so on this occasion. He testified that the ground was smooth at the place where he attempted to mount, and there was a good crossing there; that the train was moving 8 or 10 miles an hour; that he had nothing in his hands; that he took the usual position of a man boarding a moving train, which was in accordance with his experience and observation; that, as the train came by, he caught the railing of the express and smoker, swung himself forward with the train, succeeded in getting one foot upon the step, and slipped and fell off that he did not know what caused him to slip; that the steps were from 15 to 24 inches above the ground. He offered to prove that his habit and custom had always been to get off and on moving trains, and that every week, during his four years as a drummer, he had got on and off moving trains, not only every week, but every day in the week; that, from his experience in daily boarding moving trains, he could ordinarily board a train moving 8 or 10 miles an hour in perfect safety; and, from such experience, the proper way to board them was as he attempted to do on this occasion. The plaintiff also offered to prove by three witnesses that drummers, in the practice of their vocations, usually acquire much experience and become quite expert in boarding moving trains; that, as drummers, they had each acquired much experience in boarding and dismounting moving trains, and that the plaintiff had acquired great expertness in successfully boarding moving trains; that, from the experience of the witnesses and from their observation of the plaintiff, he, in attempting to board the train in question at the place and under the speed it was going, was not unnecessarily exposing himself to danger or to obvious risk of injury; that, considering the rate of speed of the train, the place and the circumstances under which plaintiff attempted to mount it, "the attempt was not one of obvious danger to an experienced man in boarding and dismounting moving trains, when he was as active and athletic and expert as Mr. Small was." All of this evidence was rejected by the court. It did not appear that any necessity or emergency existed for the plaintiff to board the moving train, but he attempted to do so merely to avoid the delay incident to missing that train. At the conclusion of the evidence submitted in behalf of the plaintiff, the court granted a nonsuit. The case is here upon the plaintiff's bill of exceptions, complaining of the exclusion of evidence and the grant of the...
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