Continental Casualty Company v. Todd

• Decision Date: 25 March 1907
• Citation: 101 S.W. 168,82 Ark. 214
• Parties: CONTINENTAL CASUALTY COMPANY v. TODD
• Court: Arkansas Supreme Court

101 S.W. 168

82 Ark. 214

CONTINENTAL CASUALTY COMPANY v. TODD

Supreme Court of Arkansas

March 25, 1907

Appeal from Conway Circuit Court; William L. Moose, Judge; affirmed.

Affirmed.

Ashley Cockrill, for appellant.

1. The court erred in excluding the expressed opinion of the witness Pope that deceased could not have fallen in the position in which he was found but must have laid down, and of the witness Evans to the same effect; and also in excluding the statement of the witness Sword that the wound looked just like it had been made by the pilot of an engine. Opinions of non-experts are admissible when the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time and, also, when the facts upon which the witness is called upon to express an opinion are such as men in general are capable of comprehending and understanding. 66 Ark. 498; 56 Ark. 617; 64 Ark. 530; 61 Ark. 245; 17 Cyc. 40.

2. Under the evidence in this case, the verdict was manifestly excessive, and in no event should it have been for more than $ 150.

Carroll Armstrong, W. P. Strait and Chas. C. Reid, for appellee.

1. The court properly excluded the opinion evidence offered by appellant. 56 Ark. 617.

2. The law presumes that the deceased was in the exercise of ordinary care, and this presumption is not overthrown by the fact of the injury alone. 73 Mo. 219; 94 Mo. 294; 154 Mass 77; 159 U.S. 603; 15 Wall. 401; 163 U.S. 366; 129 Mo. 92. Mere contributory negligence is no answer to an action on a contract of insurance. 58 Neb. 792; 7 C. C. A. 588. Mere carelessness is not a defense. 158 N.Y. 698. It is only where a man acts so recklessly and carelessly that he shows an utter disregard of a known danger. 171 Pa.St. 1; 32 A. 1108.

3. "Where an accident policy fixes a maximum limit of the company's responsibility when the accident results from 'unnecessary or negligent exposure to obvious risk of injury,' the mere inadvertance or mistake of the insured is not sufficient to bar a recovery, as the danger must be known and the assured must consciously and purposely subject himself to the risk." 25 Ohio, C. C. 395; 102 Pa.St 268. See also 58 Wis. 13; 154 Mass. 77; 75 Wis. 116; 1 Beach on Law of Ins. §§ 259, 260; 162 Mass. 354; 78 S.W. 812; 85 S.W. 128.

OPINION

MCCULLOCH, J.

This is an action upon a policy of accident insurance for $ 1,500 issued by appellant, it being alleged in the complaint that the assured, John H. Todd, met his death by being accidentally and violently struck and killed by a moving railway train.

Appellant set forth in its answer, as a defense to the action, a clause in the policy providing that in case of accidental death resulting from "unnecessary exposure to danger or obvious risk of injury the limit of defendant's liability shall be $ 150," and alleged that the assured met his death by unnecessary exposure to danger and to obvious risk of injury.

The issue was tried before and submitted to a jury upon instructions of which appellant does not complain, and a verdict was returned in favor of the plaintiff for the full amount of the policy.

Appellant questions the sufficiency of the evidence.

Todd was fireman on a railroad locomotive, and was killed by another moving train about eight o'clock in the evening. His engine was pulling a freight train, and stopped on the side track at a station to let two passenger trains pass. After the last of these trains had passed Todd was found lying on the ground between the two tracks with his head on the end of a cross-tie of the main track on which the other trains had passed along, and his skull was fractured by a blow of some kind on the head--one witness said on the top and one said on the back of the head. He was unconscious, and died the next day without having regained consciousness. His body was stretched upon the ground at right angle with the track, and was in grass sufficiently high to partially obscure him from view. He was last seen before his injury after the first train had passed and before the last one. No one saw him lie down. The witness who saw him last was the engineer, who was introduced by the defendant and testified that he and Todd separated about twenty minutes before the last train came, and that he (witness) went to the front of his engine and laid down on the pilot where the head brakeman was lying, waiting for the train to pass. He explained that the crew had been working overtime, and were worn out and sleepy. This witness gave two somewhat conflicting depositions in the case. In one deposition he said Todd went back to the caboose for a drink of water, and on his return brought him (witness) a drink, and that he left Todd in the engine when he went forward to lie down on the pilot. In the other he testified that he (witness) went back to the caboose to get a drink of water and promised to bring Todd a drink on his return, but that the other train passed before he returned, and that as soon as he got back to the engine to pull out he saw Todd lying on the ground with his head on the tie in the injured condition already described.

The conductor and head brakeman both testified to seeing Todd after the train passed, in the condition described. All three of the witnesses testified that when they first saw Todd he was lying in...