Alter v. Union Casualty & Surety Co.

• Decision Date: 15 November 1904
• Court: Missouri Court of Appeals
• Parties: ALTER v. UNION CASUALTY & SURETY CO.

83 S.W. 276

108 Mo. App. 169

ALTER v. UNION CASUALTY & SURETY CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

ACCIDENT INSURANCE — VOLUNTARY EXPOSURE — RECOVERY — LIMITED LIABILITY.

1. Plaintiff, as was his custom, in going from his place of business to a railroad station in the evening, instead of selecting one of two safe ways over the public streets of the city, passed through certain railroad yards, where trains were momentarily passing in opposite directions. Finding his way blocked, he climbed upon a slowly moving freight train, which was going in his direction, and shortly after, in alighting therefrom, was struck by a semaphore and injured. Held, that plaintiff was guilty of voluntary exposure to avoidable danger, within the terms of an accident policy, and was therefore only entitled to recover under a limited liability clause therein.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Howard Alter against the Union Casualty & Surety Company. A judgment was rendered in favor of plaintiff, and defendant appeals. Reversed.

Percy Werner, for appellant. A. G. Morrison, for respondent.

REYBURN, J.

Respondent brought this action upon a general accident policy of insurance issued for the principal sum of $2,000 against bodily injuries sustained through external, violent, and accidental means, if death should result from such injuries within 90 days, and, in event that loss, by actual separation at or above the wrist, of the left hand, should so result within 90 days, the company to pay the assured one-third of the principal sum above named. The petition, setting forth the terms of the contract of insurance, charged that on the 24th day of June, 1903, while the policy was in full force and effect, as plaintiff was riding on cars in yards of the Terminal Railroad Association, in the city of St. Louis, he was struck by a semaphore or signal post at the side of the track, and knocked from the cars, falling in such a way that he sustained an injury to his left hand, necessitating its amputation above the wrist, and concluded with general allegations of notification of accident and of proof of injury in obedience to the policy. Defendant, answering, admitted the occurrence of the injury, the issuance of the policy, and that it was in force at the time of the injury, and that plaintiff had complied with the policy respecting notice of injury and its proof. For affirmative defense, it pleaded that the policy provided that if any accidental injury, fatal or otherwise, be caused, directly or indirectly, by voluntary exposure to avoidable danger, the company's liability shall be limited to a sum equal to one-twentieth of the principal sum or fractional part as provided, and further charged that plaintiff received the injury described whilst riding on, or in consequence of his having attached himself to, one of a string of coal cars as they were passing through the yards of the Terminal Railroad Association in St. Louis, or whilst attempting to alight therefrom, by being dragged or knocked therefrom by a semaphore or signal post erected alongside of the track over which the cars were passing; that such cars were not intended for passengers, and plaintiff was not a passenger thereon, and that in getting upon and attaching himself thereto and riding thereon, and in attempting to alight therefrom, as he did, plaintiff voluntarily exposed himself to avoidable danger, within the terms of the policy; and that the limit of liability of defendant on account of such injury so sustained by plaintiff was $33.33, being one-twentieth of $666.67, which lesser amount defendant had tendered and paid into court as due plaintiff, denying any further liability.

At the trial, plaintiff, produced by defendant as its witness, testified that at the time of the catastrophe, and for many years preceding, he had been employed as a clerk in the shops of the Missouri Pacific Railway, at corner of Montrose and Chouteau avenues, south of the railroad tracks entering the city of St. Louis from the west; that on the day of his injury he left his office at 5 o'clock in the afternoon to proceed to his residence, in Kirkwood, in the suburbs of the city, by train from the Union Station. He further deposed that he went by the easiest way for him to reach the station, through the railroad yards, and at Twenty-Second street he observed a string of freight cars coming out of the upper — the west — yard, and moving into the lower yard, but,...