Fid. & Cas. Co. v. Sittig
| Decision Date | 13 October 1899 |
| Citation | 181 Ill. 111,54 N.E. 903 |
| Parties | FIDELITY & CASUALTY CO. v. SITTIG. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to appellate court, First district.
Action by Hannah M. Sittig against the Fidelity & Casualty Company on a policy of accident insurance. From a judgment of the appellate court affirming a judgment of the lower court in favor of plaintiff (79 Ill. App. 245), defendant brings error. Affirmed.
John A. Post and John B. Brady, for plaintiff in error.
Thornton & Chancellor, for defendant in error.
The appellate court has affirmed a judgment recovered by appellee in the superior court of Cook county against appellant on a policy of accident insurance. The insured, Herman C. Sittig, was accidentally killed while attempting to board a suburban train of the Illinois Central Railroad Company. The appellate court, in stating the case, said: ‘The evidence tends to show that he reached the neighborhood of the steps of the station platform just after the train had started; that he threw his valise on the platform of the car, seized the railing, and attempted to climb on, but either lost his hold or fell after being carried some distance, or else was knocked off and killed by coming in contact with a small building used as a ticket office, which stood very near the track, and distant about one hundred and forty feet from the station platform.’ The evidence shows that this is a fair statement of the accident. The insured was a traveling salesman, and so described in the policy, which stated that ‘this insurance covers injuries received in travel by regular passenger or mail trains.’ The policy also contained this clause: ‘This insurance does not cover * * * voluntary exposure to unnecessary danger;’ and the contention of the appellant is that the insured met his death by exposing himself voluntarily to unnecessary danger, and that for that reason the judgment cannot be sustained. So far as the assignment of error embraces the question of fact involved in the decision of the appellate court, such decision is, by virtue of the statute, final, and we shall not, therefore, follow appellant's counsel in their argument upon the facts. But at the close of the evidence the defendant asked the court to instruct the jury to find a verdict for the defendant, and took an exception to the court's refusal to give the instruction, and thus the legal sufficiency of the evidence to sustain the judgment is presented to us for decision.
There was sufficient evidence to sustain the conclusion that after the insured had secured a secure footing upon the steps of the car, and was holding to the hand rail, and about to draw himself upon the platform of the car, he was struck with such force upon the side and back of his head by the ticket-office building, as the train passed it, as to break his neck and knock him under the train. He was a traveling salesman, but what was the particular emergency or necessity for his effort to board this particular train after it had started does not appear from the evidence. Nor does it appear that he knew of the ticket-office building, or its close proximity to the track or to the moving cars. The trainmen testified that the train, after starting, had moved from 100 to 125 feet, and was going at a speed of from 8 to 10 miles an hour when the insured attempted to get aboard, but other witnesses testified to a less degree of speed. There was testimony, also, that some one called to the insured, as he was about to make the attempt to board the train, not to do so, but whether or not this warning was heard by the insured does not appear. The death by accident insured against by the policy having been proved, it devolved on the defendant to prove a violation by the insured of the condition, or, rather, that by his act he brought himself within the exception in the policy relied on to avoid payment. This exception, as applicable to this case, was, in substance, that, although accidental, death caused by voluntary exposure to unnecessary danger was not insured against. To relieve the company from liability, it was necessary to establish two facts: First, that the exposure to danger was voluntary on his...
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