Gatewood v. Continental General Life Ins. Co.

• Decision Date: 10 December 1927
• Court: U.S. District Court — Eastern District of Virginia
• Parties: GATEWOOD v. CONTINENTAL GENERAL LIFE INS. CO. OF HARTFORD, CONN.

23 F.2d 211 (1927)

GATEWOOD v. CONTINENTAL GENERAL LIFE INS. CO. OF HARTFORD, CONN.

District Court, E. D. Virginia.

December 10, 1927.

Jno. S. Barbour, of Fairfax, Va., for plaintiff.

Gardner L. Booth, of Alexandria, Va., for defendant.

GRONER, District Judge.

This is an action to recover on a policy of insurance and was originally begun in the circuit court of Fauquier county and removed therefrom to this court. The parties have stipulated certain facts and others shown in the evidence are not disputed. A jury was waived.

Eugene C. Gatewood, husband of the plaintiff, was the holder of a policy of insurance issued by the defendant company commonly known as an accident policy. The provisions of the policy provided payment in the sum of $5,000 in the event of loss of life, limb, or sight, and "triple indemnity" if sustained by insured "by being struck or run down by a conveyance while walking on or across any public highway." The company promptly admitted liability for the amount of the principal indemnity, and this was paid and accepted without prejudice to the right of plaintiff as beneficiary to insist upon the applicability of the triple indemnity clause just above quoted. The question therefore for determination here is: (a) Was the injury sustained on a "public highway"? And (b) was insured "struck or run down by a conveyance?"

At the time of the injury insured had gone to the Southern Railway depot at Delaplane, Fauquier county, Virginia, to supervise work then being done at a point on the railroad tracks close to the depot as a result of a train wreck. While he was thus engaged, Mrs. Odey, a neighbor for whom he had undertaken to transport some freight from the depot, desiring to see him in connection with that matter, went to the depot, a short distance away, on horseback accompanied by her son. On arrival there, her son dismounted and secured the services of a colored boy to hold the horse while he went around the station platform to the point of the wreck. Insured, being apprised of Mrs. Odey's desire to see him, came to the roadway at the rear of the depot building where she remained mounted, and while talking to her, the horse being held by the colored boy became frightened by the exhaust from a locomotive, and in attempting to escape kicked insured so severely that a few days thereafter he died.

Six photographs were introduced in evidence showing the place of accident and surrounding physical objects. These show that the railroad depot was located on the south side of the tracks, which at the point in question run nearly east and west. On the north side or front of the depot was the usual platform, extending at least the entire length of the building and separating it from the tracks. The waiting rooms, ticket office, and baggage room were entered by separate doors from the front platform. The freight department occupied the eastern end of the building, with a large door to the south opening on a freight platform, which was reached from the ground by an inclined way of the same width as the platform. To the south of the station building and freight platform was an open space, about 75 or 80 feet wide, used as a driveway by the public generally for turning and parking automobiles and by the patrons of the railroad company for the delivery and removal by wagons and automobiles of freight from the freight platform, and for hauling logs and timber and driving cattle for shipment on the railroad; the space for logs and timber pending shipment and the delivery platform for the cattle being located at the terminus of this roadway, and some 200 to 300 feet to the eastward of the station.

The county road or highway connecting Delaplane with Markham on the south, after passing over a bridge, runs in an eastwardly direction until it reaches the roadway at the rear of the railroad depot, and there it turns in a northwardly direction between the railroad station on the east and a store building on the west, and thence on across the tracks to Upperville. At the point where they abut there is no natural or artificial barrier separating the county road from the road running behind the station building to the cattle pens and railroad yards, and except that the former is of better construction and shows evidences of more constant usage, the roadway through the railroad property might be regarded as a prolongation or fork of the county road. An official of the railroad company testified that the free use of the road over the company property to the citizens of the community was unquestioned by the railroad. Insured was injured on the railroad property at a point 15 to 20 feet south from the southern side of the depot building and some 25 or 30 feet from the eastern boundary of the county road and in the open space used as a general roadway for all the purposes I have mentioned.

A careful examination by counsel of the decided cases, which I have endeavored to supplement independently, discloses but one case in which the phrase "public highway," as used in an accident insurance policy, has been defined by an appellate court. In the case mentioned (...