Overbeck v. Travelers' Ins. Co.

• Citation: 68 S.W. 236,94 Mo. App. 453
• Parties: OVERBECK v. TRAVELERS' INS. CO.
• Decision Date: 05 May 1902
• Court: Court of Appeal of Missouri (US)

68 S.W. 236

94 Mo. App. 453

OVERBECK v. TRAVELERS' INS. CO.

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

ACCIDENT INSURANCE — POLICY — VOLUNTARY EXPOSURE — PLATFORM OF MOVING TRAIN.

Plaintiff procured an accident policy providing that it should not cover any accident resulting from voluntary exposure to unnecessary danger, or resulting directly or indirectly from attempting to enter or leave a moving conveyance using steam as a motive power, or happening while in any part thereof not provided for occupation by passengers. Plaintiff, when his train approached his station, stepped out on the platform, which was slippery from rain, while the train was moving, and fell. Held, that under the terms of the contract a verdict was properly directed for defendant.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Action by A. P. Overbeck against the Travelers' Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Duncan & Utz, for appellant. Vinton Pike, for respondent.

BROADDUS, J.

This action is to recover on a policy of insurance against accidents. The plaintiff was insured in the defendant company against accidents, the policy being issued to him on the 10th day of September, 1900, in consideration of the payment by him of the amount of premium required. The defense was that by the terms of the policy of insurance it is provided that the same "shall not cover accident, injury, or liability resulting wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger or accident, injury or liability resulting directly or indirectly from entering or trying to enter or leave a moving conveyance using steam as a motive power, or happening while being in any part thereof not provided for occupation by passengers." The parties submitted the case on the plaintiff's own evidence and the pleadings. The plaintiff, who was a commercial traveler, testified that: On the 22d day of November, 1900, he went aboard a Missouri Pacific Railroad train at Rich Hill, Mo., at about 5:50 o'clock a. m., to go to a station named "Archie." That while en route he went to sleep, but awoke in time to hear the call made for said station. At about the time the train whistled for the station, he got up, turned up his coat collar, put on his gloves, took his grip and two bundles of advertising matter, and walked to the front, and sat down on a chair, when the train slowed up for the station. He further stated that from the time he had taken up with the details related he thought the train was at the station, and that, after sitting on the arm of the chair a minute or two, he got up, and went out on the platform of the car, about which time, or at the time the accident occurred. The train was then slowing down, and while he was standing on the platform he lost his balance, fell, and was struck by the train. Archie was a small station, and witness accounted for his hurry to get off the train in this language: "It is a small station, only two or three hundred [inhabitants], and we had to get out of there and get off, or we would be carried by." He further testified that the rate of speed at the time he fell could not have been over a mile or two an hour, for the train only ran a half a car's length after he fell. On cross-examination the following questions were asked and answered: "Q. You thought you were at the platform at Archie when you started to leave the front seat of the car, and got through the door on the platform? A. Yes, sir; or very near it. Q. You expected to stop immediately to get off — Now, when you were inside the door, you went out to get off, because you supposed you were at the platform? A. Whenever the train stopped, I would get off. Q. That was the reason you went through...