45 S.E. 706 (Ga. 1903), Small v. Travelers' Protective Ass'n

Citation:45 S.E. 706, 118 Ga. 900
Opinion Judge:FISH, P.J.
Party Name:SMALL v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.
Attorney:Hardeman, Davis, Turner & Jones, for plaintiff in error. Roland Ellis and J. E. Hall, for defendant in error.
Case Date:November 14, 1903
Court:Supreme Court of Georgia
 
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Page 706

45 S.E. 706 (Ga. 1903)

118 Ga. 900

SMALL

v.

TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

Supreme Court of Georgia

November 14, 1903

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.

FISH, P.J.

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

Page 707

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...

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