Deloy v. Travelers Ins. Co.

• Decision Date: 07 October 1895
• Docket Number: 224
• Parties: Adele DeLoy v. Travelers Insurance Company, Appellant
• Court: Pennsylvania Supreme Court

32 A. 1108

171 Pa. 1

Adele DeLoy v. Travelers Insurance Company, Appellant

No. 224

Supreme Court of Pennsylvania

October 7, 1895

Argued March 20, 1895

Appeal No. 224, July T., 1894, by defendant, from judgment of C.P Lycoming Co., June T., 1893, No. 204, on verdict for plaintiff. Affirmed.

Assumpsit on an accident insurance policy for the death of plaintiff's husband. Before METZGER, P.J.

The policy in suit, in which plaintiff was named as beneficiary contained the following clause:

"5. This insurance does not cover disappearances; nor suicide sane or insane; nor injuries of which there is no visible mark on the body (the body itself, in case of death, not being deemed such mark); nor accident, nor death, nor loss of limb or sight, nor disability resulting wholly or partly directly or indirectly, from any of the following causes, or while so engaged or affected: Disease or bodily infirmity, hernia, fits, vertigo, sleep-walking, medical or surgical treatment, except amputations necessitated solely by injuries and made within ninety days after accident; intoxication or narcotics; voluntarily or involuntarily taking of poison, or contact with poisonous substances, or inhaling of any gas or vapor; sunstroke or freezing; dueling or fighting, war or riot; intentional injuries (inflicted by the insured or any other person); voluntary overexertion; violating law; violating rules of a corporation; voluntary exposure to unnecessary danger; expeditions into wild or uncivilized countries; entering or trying to enter or leave a moving conveyance using steam as a motive power (except cable cars); riding in or on any conveyance not provided for transportation of passengers; walking or being on a railway bridge or road-bed (railway employees excepted)."

The evidence at the trial showed that Francis DeLoy, plaintiff's husband, was a lumberman, engaged in lumbering operations near DeLoy station, on the Jersey Shore and Pine Creek Railroad. At this station there was a small station house with a platform, but being a mere flag station there was no station agent to stop trains. The evidence tended to show that a flag was kept in the station house, and it was the custom of persons wishing to stop a train to flag it. On October 10, 1892, the deceased flagged a train, and returned with the flag to the station side of the track, walked a few steps up the side of the track to take the train, when he slipped or stumbled and fell towards the track as the train approached, and was struck in the breast by the engine and instantly killed.

The engineer of the train testified as follows:

"Q. You said when you first saw him flagging the train he was standing on the track, and then he moved off outside the rail? A. Yes. sir." On re-cross-examination the witness testified, "I thought he was off the end of the ties, and I thought we were going to clear him." The same witness further testified: "It seemed as though he slipped or something, but I thought his body was far enough to clear him -- it seemed to me as though the man was going to clear it. It was quick done, but he seemed to kind of slip or something, and his body seemed to come closer to the bumper."

The court charged in part as follows:

It is contended that he lost his life, first, by voluntarily exposing himself to unnecessary danger; secondly, by walking or being upon the railroad bed at the time when the accident took place, and death resulted from it. What is meant by these provisions in this policy of insurance?

[It is contended on the part of the defense that if there was any negligence on the part of Francis DeLoy, or in other Words, if there was any such negligence as would have relieved the railroad company from liability, in case a suit would have been brought against them for damages, that such negligence is also a defense in this case, and amounted to voluntary exposure to unnecessary danger. We do not think that this is the law which will govern this case. We do not think that we can give any such meaning to this exception in the contract.]

[But we say to you, gentlemen of the jury, that it means an intentional exposure to unnecessary danger, and that unless he did it intentionally you cannot find that he exposed himself to danger within the terms of this exception. Now, it is true that it is very difficult, and in fact it is rarely the case, that you can prove by positive evidence what a man's intentions were, and hence you must determine the intentions of a man generally from his acts and conduct, and it may be said that if a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, that then he may be said to have exposed his person voluntarily to danger.]

Or if the risk of danger is so obvious that a prudent man exercising reasonable foresight would not have done the act, then he may be said to have voluntarily exposed his person to danger. It must also be exposed to unnecessary danger.

You have heard the facts in this case -- the purpose of his going upon the railroad track was to flag a train in order to stop it. He had a lawful right to go upon the railroad track for the purpose of flagging the train. He was not there as a trespasser, yet if, when he got upon the railroad track, he found that there was danger, then it was his duty to immediately leave the track. If, after he got upon the railroad track, the train was in sight, and he saw the speed with which it was coming, he had no right to stand there until it was too late for him to retreat. The rule that would apply in such a case is that he had no right to be there any longer than a prudent man, in the exercise of reasonable care and caution, would have deemed necessary. If he stayed there longer than reasonable prudence would permit a man to stay in a case of that kind, after the danger became apparent to him, then, as a matter of course, his widow could not recover on this policy. Whether such is the fact or not it is for you to determine under all the evidence in this case, and in doing so you must take into consideration all the surrounding circumstances -- the speed with which the train was running, the facilities for seeing the train and the distance at which it could be seen. The care that he exercised and the efforts that he made to get off, together with all the attendant circumstances, are proper matters for you to consider when you come to consider the question, whether this man was doing an act that a man of ordinary prudence would have done under like circumstances.

Another question that has been raised is that he was walking or was, at least, standing or being upon a railroad track or bed of a railroad at the time the injury occurred. It is alleged on the part of the defendant that it did not make any difference whether he was struck by the locomotive and killed while he was actually between the tracks or even on the ties, so long as he was upon what is technically known as the roadbed; that he had no right whatever to be there, and was not within the protection of this policy while he was there in that position. Now, true it is, that in actions where the question would arise between railroad companies, or between them and their employees, or in reference to the construction of railroads, that technically the roadbed might cover the entire right of way, or at least that part of the right of way which was leveled off and constructed for the purpose of putting a railroad track on, and it might be ten feet in width, or it might be forty of fifty feet in width. With this contract in question the railroad companies have no concern whatever, nor does it affect any transaction with any railroad company, nor can the questions that might arise between the widow of the deceased and the railroad company have anything to do with this case, and we think that this contract must be construed just in the same manner as this company at the time they gave this policy had a right to expect that the assured would construe it. What had the company the right to expect, when they issued this certificate of insurance, that Francis DeLoy would understand by the wording of this exception in their policy? Would not they have a right to expect that he would construe it as it would be construed by the public generally; and people generally would understand by it that the roadbed was simply the road as constructed -- or rather the ties upon which the rails lay, which might not be, as in this case, more than about eight feet in width; and we think it is a fair construction of this contract to say to you that that constituted what was undoubtedly meant by this policy. There could be no object in an insurance company preventing a man from going upon the right of way of a railroad company, because if he was away from the track and the ties far enough not to be reached by the engine and the cars, he could be in no danger more than any place else.

[The company evidently intended to be exempt from liability to accident resulting to persons while walking upon the railroad track and railroad ties, or, at least, so near that they would be likely to be hit by trains passing or repassing upon the railroad; and we think that is the construction you ought to give to this contract, and say to you that it means parties being or walking upon the ties between the tracks, or on the ties outside of the tracks, (i.e., upon the ties upon which the rails are laid, outside of the rails,) all that space which would be covered, you may say, by the cars which would be running upon the tracks.]

[And again it is evidently intended by this provision that it should not prevent the person from being lawfully upon a railroad track unless it was in a time of danger, when he voluntarily exposed himself to danger by doing...