Gillis v. Duluth Casualty Association
| Decision Date | 09 June 1916 |
| Docket Number | 19,749 - (140) |
| Citation | 158 N.W. 252,133 Minn. 238 |
| Parties | J. A. GILLIS v. DULUTH CASUALTY ASSOCIATION |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $560 upon defendant's accident insurance policy. The case was tried before Ensign, J., and a jury which returned a verdict for the amount demanded. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Accident insurance -- unnecessary exposure to risk -- construction of phrase.
1. A policy of accident insurance exempted the insurer from liability in case the accident resulted from "unnecessary exposure to obvious risk of injury." It is held that the insured, a passenger on a railway train did not as a matter of law expose himself to obvious risk of injury, within the meaning of the policy, by going upon the platform of a moving car preparatory to getting off at a station, and the trial court properly submitted the question of unnecessary exposure to the jury.
Accident insurance -- double indemnity -- construction of provision.
2. A policy of accident insurance provided for double indemnity when the injury was sustained "while riding as a passenger on any railway passenger car." It is held that the insured when on the platform of a car preparatory to getting off, in the way provided by the carrier, or in the act of doing so, was within the meaning of the policy riding as a passenger on a railway passenger car.
James A. Wharton, for appellant.
Dietrich & Dietrich and John Jenswold, for respondent.
Action on an accident insurance policy. Verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or for a new trial.
1. Under the policy the defendant was not liable for an accident resulting from "unnecessary exposure to obvious risk of injury." The plaintiff, a timber cruiser, was a passenger on a mixed train on the Duluth & Iron Range. His destination was the station of Alger, where the train let off passengers. The station was a mere stopping place without the usual facilities of a country depot. It was night time. When the train approached the station the plaintiff went onto the platform of the coach, while the train was in motion, preparatory to getting off, and just as the train stopped or was about to stop he was thrown off, so he claims, and, the evidence is sufficient to sustain his contention, by a jerk. The defendant claims that, in going upon the platform as he did, the plaintiff unnecessarily exposed himself to an "obvious risk of injury" within the meaning of the policy and that he cannot recover. In Price v. Standard Life & Acc. Ins. Co. 92 Minn 238, 99 N.W. 887, there is perhaps an intimation that a lack of ordinary care by the insured, otherwise negligence, is a defense to a policy containing such a clause. It is quite generally held, however, that to defeat a recovery there must be a conscious assumption of an obvious risk of injury -- something like an appreciation of danger and a purpose to chance it. The cases are collected and discussed in a note to Diddle v. Continental Casualty Co. (65 W.Va. 170, 63 S.E. 962), in 22 L.R.A. (N.S.) 779. The court submitted to the jury the question of voluntary exposure under appropriate instructions to which no objections were then or are now made. The question was not one of law. Usually under similar policy provisions the question is held to be one of fact. Ashenfelter v. Employers' Liability Assur. Corp. 87 F. 682, 31 C.C.A. 193; Travelers Ins. Co. v. Randolph, 78 F. 754, 24 C.C.A. 305; Keene v. New England Mut. Acc. Assn. 161 Mass. 149, 36 N.E. 891; Duncan v. Preferred Mut. Acc. Assn. 13 N.Y.S. 620; Preferred Acc. Ins. Co. v. Muir, 126 F. 926, 61 C.C.A. 456. The circumstances of a case may be such as to make the question of exposure a question of law. Shevlin v. American Mut. Acc. Assn. 94 Wis. 180, 68 N.W. 866, 36 L.R.A. 52, where the insured jumped from the top of a rapidly moving train, is an illustration. And see Smith v. Preferred Mut. Acc. Assn. 104 Mich. 634...
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