Travelers' Ins. Co. v. Clark

• Decision Date: 16 November 1900
• Parties: TRAVELERS' INS. CO. v. CLARK. [1]
• Court: Kentucky Court of Appeals

59 S.W. 7

109 Ky. 350

TRAVELERS' INS. CO. v. CLARK. ^[1]

Court of Appeals of Kentucky.

November 16, 1900

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by Henry Clark against the Travelers' Insurance Company on a policy of accident insurance. Judgment for plaintiff and defendant appeals. Affirmed.

Henry Burnett, for appellant.

Wheeler & Worten and Edward W. Hines, for appellee.

BURNAM J.

This was an action to recover on a policy of accident insurance. The policy, among numerous other exceptions, provided "that the insurance did not cover death or injury resulting wholly or in part from voluntary exposure to unnecessary danger." The answer alleged: "That the decedent, Nelson Clark, did voluntarily expose himself to unnecessary danger, by and on account of which he lost his life, under these circumstances: The night before he was injured he went upon the boiler deck of the steamer Jennie Gilcrist; that he was not employed in or upon said boat, and had no business on said boat at the time spoken of; that he recklessly and carelessly got upon the top of the boilers of said steamboat, laid down close to the safety pipe of said boiler, and did go to sleep; that the officers of said boat upon discovering said Nelson Clark in this dangerous position, commanded him to leave the boat immediately, and informed him of the great danger he subjected himself to in occupying the position he did on the top of said boiler that, in spite of said warning, said Nelson Clark, without the knowledge or consent of the officers of said steamboat and against their warning and advice, again mounted to the top of one of the steam boilers, then filled with steam, and again laid down on the top of said boiler, close to the safety valve, and went to sleep; and that he did this after being fully informed and advised of the great danger of such a proceeding on his part. While thus lying on the top of said boiler, the steam of said boiler, being under heavy pressure, broke or exploded the safety valve on the top of the steam pipe, and thus permitted the steam to escape onto the person of said decedent, Nelson Clark, and from the effects of which he afterwards died; and that, but for negligence and recklessness on his part, the decedent would not have been hurt." The testimony in the case shows that Nelson Clark, the insured, was employed, with a number of other laborers, to load railroad ties on barges in the Cumberland river. A steamboat known as the Jennie Gilcrist was engaged in towing the barges from point to point, and carried with her a little shanty boat provided by the employer, which was used as a sleeping place for the laborers, being fitted up with bunks for that purpose. In the month of March, 1897, the Jennie Gilcrist and the shanty boat were moored on the bank of the Cumberland river. On the night before the accident, the shanty boat, having become leaky, sank in three feet of water before its occupants discovered the fact that it had sunk, when decedent, in company with a number of other workmen, went from the shanty boat to the steamboat, and slept on deck around and about the boilers. The next day the water was pumped out, and the shanty boat raised, and the next night a syphon pump was run all night to keep the shanty boat from sinking again, and for this purpose steam was kept up in the two boilers of the steamer Gilcrist under the supervision of the watchman of the boat. Between 9 and 10 o'clock on this night the decedent laid one end of a plank upon the top of the boiler and the other upon the bulkhead running parallel with the boilers, and laid down upon this plank, with his feet towards the boilers, and went to sleep. During the night, and after he had gone to sleep, the steam in the boilers rose above the limit, and the safety valve, in steamboat parlance, "popped off," striking decedent with such force as to knock him off his plank, and inflicting upon him such severe scalds and burns as to cause his death. Davis, the engineer of the towboat, testifies that he saw decedent, the night before the accident occurred, on the top of one of the boilers, and that he told him that it was a dangerous place for him to be, and to get down, and that he did so. He also testifies that there were orders from the captain of the boat not to let the laborers remain on the towboat at night, while the witness Bryant testifies to general orders from the captain forbidding the tie men from coming on the steamboat; and to some extent these statements are corroborated...