Bon v. Ry. Passenger Assurance Co.

• Decision Date: 20 October 1881
• Citation: 56 Iowa 664,10 N.W. 225
• Parties: BON v. RAILWAY PASSENGER ASSURANCE CO.
• Court: Iowa Supreme Court

56 Iowa 664

10 N.W. 225

BON

v.RAILWAY PASSENGER ASSURANCE CO.

Supreme Court of Iowa.

Filed October 20, 1881.

Appeal from Wapello circuit court.

This action is based upon an accident insurance ticket. There was a verdict and judgment for the plaintiff. The defendant appeals.Stiles & Lathrop, for appellant.

Wm. McNett and H. B. Hendershott, for appellee.

ROTHROCK, J.

The plaintiff purchased an accident insurance ticket of an agent of the defendant, to go from Creston to Afton, Iowa, a distance of 10 miles. Before the station at Afton was reached, and while the train was yet in motion, the plaintiff left his seat in the car in which he was riding, went upon the platform and took a position on the steps, from which he was precipitated to the ground before reaching the passenger platform, and one of his feet was so injured by being crushed by a wheel of one of the cars composing the train as to require amputation. The action was brought to recover for loss of time at $15 per week for 26 weeks, according to the terms of the insurance ticket. The accident policy or ticket contained the following clause: “Provided, always, that this insurance shall only extend to bodily injuries, fatal or non-fatal, as aforesaid, when accidentally received by the insured while actually riding on a public conveyance provided by common carriers for the transportion of passengers in the United States or dominion of Canada, and in compliance with all rules and regulations of such carriers, and not neglecting to use due diligence for self-protection. * * *”

It must be conceded that it was incumbent on the plaintiff in order to recover to prove not only that he was accidentally injured while on his journey, but that he was at the time of the accident complying with the rules and regulations of the railroad company, and not neglecting to use due negligence for self-protection. The circuit court instructed the jury to this effect, and no question is made as to the correctness of these instructions.

When the plaintiff rested his case the defendant moved the court to instruct the jury to return a verdict for the defendant upon the plaintiff's evidence. The motion was overruled, and this ruling is assigned as error. To determine whether this motion shonld have been sustained it will be necessary to give the substance of the evidence as introduced by the plaintiff up to the time the motion was made and finally ruled upon. It appears from this evidence that as the train approached the station the whistle sounded, and a brakeman called the name of the station. The train began to slow down, and the plaintiff, seeing other passengers get up and walk out, arose from his seat, about five seats back in the car, and followed them out of the door upon the platform to get off. The steps of that car being occupied by a passenger, plaintiff stepped across upon the platform of the forward car, and stood upon the steps with his hands holding the rail preparatory to stepping off, and was followed upon that platform by another passenger. At this time the train had slowed down, as plaintiff says, to about two and a half miles per hour. and as other of his witnesses say, to from two to five miles per hour, when without warning the train gave a sudden start forward, whereupon the man in the rear of the plaintiff lost his balance, and, falling against the plaintiff, precipitated him from the steps, and in his fall his foot got under the wheel and was crushed. He fell at a point about 20 feet before reaching the passenger platform.

The foregoing is the statement of the evidence for the plaintiff as made by his counsel in argument, and in nearly the same language. That it is as favorable for the plaintiff as is justified by the record, must be conceded. To this should be added the further fact that on the door of the passenger coaches the following rule was inscribed upon a metallic plate: “Passengers are not allowed to stand on the platform;” and the plaintiff himself, as a witness on the stand, testified that he was aware of this rule of the railroad company.

Conceding the foregoing statement of facts to be true, was there such a failure of proof, from the plaintiff's own showing, as to require the court to direct the jury to return a verdict...