Christensen v. Nat'l Travelers' Ben. Ass'n of Des Moines

• Decision Date: 22 June 1923
• Docket Number: No. 35145.,35145.
• Citation: 196 Iowa 375,194 N.W. 194
• Parties: CHRISTENSEN v. NATIONAL TRAVELERS' BEN. ASS'N OF DES MOINES, IOWA.
• Court: Iowa Supreme Court

196 Iowa 375

194 N.W. 194

CHRISTENSEN

v.NATIONAL TRAVELERS' BEN. ASS'N OF DES MOINES, IOWA.

No. 35145.^a1

Supreme Court of Iowa.

June 22, 1923.

Appeal from District Court, Plymouth County; Wm. Hutchinson, Judge.

Action upon a policy of accident insurance. The plaintiff was the beneficiary of the policy. The insured was her husband, whose death resulted from accident. The only defense pleaded was predicated upon the following provision of the policy:

“This policy shall not cover * * * injuries occasioned by * * * exposure to obvious risk * * * to an amount exceeding $75.”

The defendant pleaded that the insured breached the foregoing provision and that his death resulted therefrom. At the close of plaintiff's evidence, the trial court sustained the motion of the defendant to direct a verdict for the plaintiff for $75, and no more; the face of the policy being for $2,000. On the following day, and during the same terms, the court on its own motion set aside its prior order and ordered a new trial. From this order the defendant has appealed. Affirmed.J. U. Sammis, of Sioux City, and F. P. Carr, of Des Moines, for appellant.

C. R. Metcalfe, of Sioux City, for appellee.

EVANS, J.

The insured, Henry M. Christensen, was a man 25 years of age, physically active, and in good health. He was a resident of the town of Struble. He met his death at the nearby town of Hinton in the forenoon of June 7th, while attempting to board a moving freight train. One hour before he had purchased his ticket. The train was in the station, and had much work to do there. Christensen's place of waiting was at a place of business about 100 or 125 feet distant from the depot. The train was headed north. Its engine was near the south end of the depot platform. The train was quite long, consisting of 30 or 40 cars. As the engine gave its starting signal, Christensen started for the depot platform. As he approached the same, the conductor mounted the engine and called to Christensen to “go down there and get on.” Christensen started for the south end of the train, but turned back again to the platform, apparently believingthe distance to the south end being too great to enable him to get aboard before the speed of the train should become forbidding. The platform was a long platform about 18 inches high. Christensen ran alongside of a flat car that was without handholds or other aids to board it. He put his hands upon the floor of the car and leaped thereto, apparently attempting to get into a sitting position thereon. The attempt failed, and he fell between the platform and the car and lost his life. The question presented to us is: Must it be said as a matter of law that the insured exposed himself to obvious risk, within the meaning of the policy? Or should it be said that the question was one of fact for the jury, to be determined in the light of all the circumstances presented in the case?

Inasmuch as a breach of this provision of the policy must always involve a question of fact, however conclusive the evidence may be, it follows of practical necessity or probability that not all cases of breach would be established by conclusive evidence, and that there must be a zone within which a jury question may arise. Does the case at bar come within or without that zone? The term “obvious risk” is not readily defined with precision, nor do we find in any of the cases on the subject any attempt at precise definition. This tends to widen somewhat the jury zone. It is defined as a risk or damage which is easily discovered and readily perceived by a person of ordinary prudence. It is not the equivalent of mere negligence, although closely akin thereto. It must, however, comprise negligence in an emphatic and affirmative sense. To treat negligence as the equivalent of an obvious risk, within the meaning of the policy, would be to impair greatly the value of accident insurance. Few accidents occur without negligence somewhere, and many of them involve some degree of negligence on the part of the injured party.

The brief of appellant brings to our attention three of our own cases: Follis v. Association, 94 Iowa, 435, 62 N. W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408;Little v. Association, 154 Iowa, 440, 134 N. W. 1087;Rommel v. Association, 183 Iowa, 776, 166 N. W. 455. The evidence in each of those cases disclosed voluntary exposure to great and imminent danger, threatening almost certain injury. The act of the injured party in each case was indisputably daring and reckless, and gross in its negligence. We are unable to say that our holding in either of those cases controls the case at bar as a matter of law.

Reliance is placed, also, upon the case of Garcelon v. Association, 195 Mass. 531, 81 N. E. 201, 10 L. R. A. (N. S.) 961, and Rebman v. Insurance Co., 217 Pa. 518, 66 Atl. 859, 10 L. R. A. (N. S.) 957. In the first of these cases, the policy provision pleaded in defense exempted the insurance company from liability for any injury if the negligence of the insured contributed thereto. In the second case, there was a similar policy provision to the effect that the insured was bound to observe “due diligence” to protect himself against injury. The holdings in these cases were predicated largely upon these features of the policies.

[1] In Small v. Travelers' Protective Association, 118 Ga. 900, 45 S. E. 706, 63 L. R. A. 510, a case was presented almost identical with the case at bar. It was therein held as a matter of law that the insured had exposed himself to obvious risk. The substance of the holding therein was that an attempt to board a moving train by any person, however experienced, was an exposure to obvious risk as a matter of law. We are not prepared to commit ourselves to so broad a pronouncement. Trainmen in the course of their employment board moving trains and alight therefrom daily and continually. That the practice involves risk is to be conceded always. But we are not prepared to say that, under any and all circumstances, it is to be deemed as a matter of law an “obvious” risk, within the meaning of an insurance policy. Not only trainmen, but many others, by long practice acquire expert agility in doing the same thing, and...