Fleming v. Conn. Gen. Ins. Co.

• Decision Date: 09 October 1935
• Docket Number: No. 29.,29.
• Citation: 181 A. 185
• Parties: FLEMING v. CONNECTICUT GENERAL INS. CO.
• Court: New Jersey Supreme Court

181 A. 185

FLEMING

v. CONNECTICUT GENERAL INS. CO.

No. 29.

Court of Errors and Appeals of New Jersey.

Oct. 9, 1935.

Appeal from Supreme Court.

Action by Arthur K. Fleming against the Connecticut General Insurance Company. From a judgment for the defendant, the plaintiff appeals.

Judgment reversed.

Donald B. Munsick and W. Stanley Naughright, both of Newark, for appellant.

Arthur T. Vanderbilt, of Newark, for respondent.

HEHER, Justice.

The challenged judgment was entered on a directed verdict in favor of defendant. The pleaded cause of action is grounded upon a policy of insurance issued by defendant, indemnifying plaintiff "against loss resulting directly, and independently of all other causes, from bodily injuries effected solely through accidental means." Plaintiff fell or was thrown under the wheels of a train of the Erie Railroad Company, at its Arlington Station, and suffered the loss of both feet. The indemnity provided by the policy for such an injury was the sum of $10,000, or, in lieu thereof, at the insured's option, a "weekly indemnity ($50) so long as he lives." Plaintiff elected to take the latter, and makes claim for treble indemnity under the following clause of the policy: "Section IV: The Company will pay triple the amount, otherwise payable under Sections I, II or III for any loss caused or sustained as follows: while the Insured is a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps or running board of railway or street railway cars); * * *."

Defendant concedes liability for single indemnity only. It states the sole question raised on appeal to be "whether or not plaintiff was a passenger in or on the train in question, including the steps thereof, at the time the accident occurred," within the intendment of the triple indemnity provision of the policy. The trial judge, conceiving that the case is ruled by Anable v. Fidelity & Casualty Co., 73 N. J. Law, 320, 63 A. 92, affirmed 74 N. J. Law, 686, 65 A. 1117, and Bernardine v. Erie R. Co., 110 N. J. Law, 338, 164 A. 265, resolved this inquiry in the negative.

The proofs tended to establish the following matters of fact: On March 12, 1931, plaintiff purchased from the Erie Railroad Company a ticket entitling him to transportation from Jersey City to Bloomfield. He boarded a train that departed from the Jersey City Station at 9:44 p. m. Before the train reached Arlington, an intermediate station stop, he indicated to one of the trainmen a purpose to leave the train and invite a friend or two he thought might possibly be there to accompany him to a business meeting to be held that evening in Bloomfield. He had previously lived in Arlington. Taking his ticket, he left the train when it halted at the customary station stop.

The locus consisted of three parallel tracks, extending east and west, with the station on the southerly side thereof. The most southerly track, immediately adjacent to the station platform, was devoted to the running of eastbound trains, while the adjoining track to the north carried the westbound trains, the direction in which the train in question was moving. The third and most northerly track was used as a siding.

Plaintiff descended from the train to the station platform, and walked westerly toward Elm street, which intersects the railroad a short distance to the west of the station. Finding no acquaintance there, he crossed over to the northerly side of the train, using the vestibule of the head coach for the purpose (the highway crossing itself was blocked by the standing train), and, discovering none of his friends there, he proceeded along the north side of the westbound track, between it and the siding, with the intention of reboarding the train and continuing his journey to Bloomfield.

This is his version of the circumstances attending the accident: "When I had walked about half the distance of that car, I should say somewhere near the middle, it seemed that I heard one of the trainmen call, 'All aboard,' on the opposite side, so I hastened—I walked a little bit faster toward the center, and when I was almost within reach of the hand rail, I heard, or I seemed to hear, two little blasts of a whistle or signal—something to that effect, and then the train had been started, and then from that point I proceeded to reboard the train. * * * I took hold of the grab rail or hand rail with my right hand—that is at the front end of the rear coach, the step on the right-hand side—the right-hand of the rear coach. I grabbed hold of the grab rail with my right hand, and swung my left foot up to the step, and then about that time or during the process of swinging up, my right foot slipped on something—a tie or some object. Of course, I don't know. I assumed it was a tie, but it slipped, and that threw me slightly off my balance, causing the foot to slip off the step and my shin to strike a car step or tread— probably a tread. It struck it a pretty good blow—enough to graze it. Then I naturally fell forward on the step on my knee, and I grabbed the diagonal hand rail with my left hand, so that I would be drawn on the steps with both knees about that time. The train started up during this attempt to adjust myself, and, of course, there was a jerk—there is somewhat of a jerk when any train starts, and I fell off balance and struck my head on some object there over the left ear (indicating) which created further difficulties for me.

"Q. What do you mean? You say 'which created further difficulties for me.' A. Well, I mean it dazed me somewhat, and then my left knee slipped off the step and became involved with one of the wheels, apparently. Well, it did become involved with one of the wheels, because it was crushed at that time. There was a violent shock to my nerves, like a clap of thunder, and my head roared. Well, at that particular moment, then I was still holding on, and this knee (indicating) was resting, perhaps, on the step.

"Q. Indicating what knee? A. My right knee. I was still holding, and there was a gradual—it seemed to be pulling on this one, and in some manner it pulled me clear. After a little time the right one slid under, and there was another clap in my ears resulting from this shock, which was also worse than the first, and that threw me clear of the steps entirely. That was out quite some distance, however, from the box car. I was almost to Elm Street."

Defendant points to what it conceives to have been conflicting statements made by plaintiff in his original report of the accident to it, to police officers and railroad employees, and on the witness stand. It seems to be conceded that his testimony at the trial was, in effect, that "as he attempted to reboard the train his right foot slipped on a tie or something, and caused his left foot to slip from the step and his knee landed on the step instead of his foot"; but it is insisted that this evidence was nullified by an admission, on cross-examination, that "what he was testifying to in the court was not his recollection of what occurred at the time, but was a story, the details of which he made up some time later when he went back to look at the scene of the accident," and that the trial judge was therefore justified in directing a verdict for defendant on the ground that "the proof disclosed that the plaintiff was not a passenger in or on the train, including the steps thereof, within the meaning of section 4 of the policy."

We find no admission on cross-examination tending to support the claim that the plaintiff, in testifying that he was ascending the car steps when the accident befell him, was not drawing upon his personal knowledge of what had occurred. The testimony in the nature of subsequently drawn deductions seems to have been confined to what occurred after he had lost his balance while on the steps leading to the car platform. He later testified on cross-examination:

"Q. And your right foot caught in a cross tie or some other obstruction? A. Oh, I don't think it necessarily caught. I mean this was all very quick, you understand. It slipped.

"Q. That was as you were bringing your left foot up to the first step? A. About the time the left foot came on the bottom tread.

"Q. And then what happened to your left foot? A. The left foot slid off the step, striking my shin. * * * There is —incidentally, that scar is there yet.

"Q. So your left foot slipped down off the first step and you hit your left shin and bruised it severely? A. Yes, that was when I came forward like that (indicating) on my knees on the step.

"Q. And then what happened? A. Well, that is when I took hold of the diagonal—I don't mean the up and down grab rail, but the one that goes up along the steps, with my left hand, and drew my knee to the—on the bottom tread— that is, had my right leg down, and that is about the time this jolt or the starting of the train cracked my head against the end of the car.

"Q. And then, as I understand it, your two knees were pressing against the step? A. They were on the bottom tread. The trousers conclusively show the dirt there. They were right on the bottom tread, resting there, and they were on there until I was carried about 30 feet or 40 feet."

The bill of particulars, while not stating the occurrence with this detail, advised the defendant that the plaintiff was thrown "off balance" when his "right foot slipped on a cross tie, or some obstruction, * * * after grasping the railing when mounting the steps," There is no substantial difference between it and the original report of the accident made by the plaintiff to the defendant. One of the latter's witnesses, Dineen, testified that the train had moved only three feet when plaintiff "started to get on," and that he "then started to mount the second car." Suffice it to say, as to the statements alleged to have been made by the plaintiff at variance with his testimony at the trial, a jury question was...