Meadows v. Pacific Mut. Life Ins. Co.

• Decision Date: 04 June 1895
• Citation: 31 S.W. 578,129 Mo. 76
• Parties: MEADOWS v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: Missouri Supreme Court

31 S.W. 578

129 Mo. 76

MEADOWS v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

Supreme Court of Missouri, Division No. 2.

June 4, 1895.

ACCIDENT INSURANCE — PRESUMPTIONS AS TO CAUSE OF DEATH — BURDEN OF PROOF — INSTRUCTIONS.

1. In an action on a policy insuring against death by such accidental injuries as shall be visible on the body, where it is shown that deceased was found mangled on a railroad track, without any evidence as to how the accident occurred, the burden is on defendant to show that death resulted from a violation of some condition of the policy.

2. In an action on an accident insurance policy, where it is shown that deceased, a man 59 years of age, of business habits, left the depot for the purpose of boarding a freight train standing at the station, and was soon afterwards found mangled on the railroad track, it will be presumed, in the absence of other evidence, that his death was accidental.

3. Defendant cannot complain of an instruction given for plaintiff which ignored the facts tending to establish the defense, when the theory of the defense was clearly brought out by instructions afterwards given at defendant's request.

4. A space of 10 feet between railroad tracks is not the "roadbed," within a policy of accident insurance which provides that it does not cover accidents on "a railroad bridge, trestle, or roadbed."

Appeal from circuit court, Buchanan county; Henry M. Ramey, Judge.

Dowe, Johnson & Rusk, for appellant. Thos. J. Porter and Ben. J. Woodson, for respondent.

GANTT, P. J.

This is an action on an accident insurance policy by the administrator of the assured, Daniel A. Meadows, deceased, for $5,000. The petition contains the usual averments, and alleges that said Daniel A Meadows lost his life on or about July 30, 1892, by being "accidentally run upon and over by a car, or train of cars, on the track of the Hannibal & St. Joseph Railroad Company, at the city of Chillicothe, in the state of Missouri," and prayed judgment for the sum assured. The answer is a general denial, and a plea of the following conditions in the policy, to wit, "the claimant shall establish affirmatively, under any claim or proceeding thereunder, that the injury or death resulted from actual accident, according to the policy." And further: "The insured agrees to use due diligence for personal safety and protection, and this insurance does not cover, and the company will not be liable for injury nor death while engaged in, caused by, resulting from, or attributable partially or wholly to, any of the following causes: Voluntary exposure to unnecessary danger or perilous venture, violating law, or the rules of any company or corporation, intentional injuries inflicted by the insured or any other person, or entering or trying to enter or leave any moving conveyance propelled by steam power, or riding in or upon any such conveyance not provided for the transportation of passengers, or being upon a railroad bridge, trestle, or roadbed." Pleaded that "the deceased was acting in violation of said conditions at the time of the accident, and that his death occurred by reason of such violation, and by reason of voluntary exposure to unnecessary danger, and by reason of being upon the roadbed of the Hannibal & St. Joseph Railroad, at Chillicothe, Mo." The policy contained the conditions pleaded in the answer, and a great number of other conditions, exempting the company from liability for accidents of almost every conceivable character. Indeed, it is somewhat difficult to name an accident, as society is now constituted, for which defendant would be liable, if a strict, technical construction is indulged as to each of these conditions. The sixth clause of the conditions indorsed upon the policy is as follows: "(6) This insurance does not cover, and the company will not be liable for, disappearances, nor injury (nor death resulting from the same) of which there is no visible mark upon the body of the insured, the body itself, in case of death, not being considered such mark produced at the time of, and by, the accident; nor injury nor death while engaged in, caused by, resulting from, or attributable partially or wholly to, any of the following causes: Disease or bodily infirmity, or act committed by the insured while under mental aberration produced by disease or bodily infirmity, fits, vertigo, hernia, sleepwalking, intoxication, use of narcotics, or anaesthetics, medical or surgical treatment (amputation rendered necessary by the injury, and made within ninety days, excepted), sunstroke, freezing, taking of poison, contact with poisonous substances, inhalation of gas or vapor (voluntary or otherwise), war or riot, quarreling or dueling, fighting, wrestling, racing, excessive lifting, voluntary overexertion, gymnastic sports (except for amusement), suicide (sane or insane), any vicious act, voluntary exposure to unnecessary danger or perilous venture (unless in the humane effort to save human life), violating law, or the rules of any company or corporation, intentional injuries inflicted by the insured or any other person (except as hereinafter otherwise provided), or entering or trying to enter or leave any moving conveyance propelled by steam power (except cable or electric cars), or riding in or upon any such conveyance not provided for the transportation of passengers, or being upon a railroad bridge, trestle, or roadbed (railroad officers and employés, while engaged in their prescribed duties as such, excepted)." There was a reply denying that deceased had broken any condition of the policy. Plaintiff obtained judgment, and defendant appeals.

The facts are as follows: It was admitted at the trial that plaintiff was the qualified and acting administrator of the estate of Daniel Meadows, that notice of his death was given, and that due proof was furnished, as required by the policy. Daniel Meadows, at the time of his death, was a stockman, 59 years old, engaged in buying and selling mules. On the night of his death he went on the Wabash Railroad from Gallatin to Chillicothe. At Gallatin he and witness Noll had a conversation. He said he lived in St. Joseph, and seemed very anxious to get home, and on being asked what he was going to Chillicothe for, when he could take the Rock Island road for home, said he could go to Chillicothe, and catch a train there almost any time, and he could not on the Rock Island. At Chillicothe, about 1 a. m. that night, he talked with John Fitzpatrick, the night telegraph operator, at the window at the Wabash depot, for a few minutes, and inquired when he could get a train for St. Joe, and was told he could get a passenger train at 4:20 a. m. On being told that there was a freight train there, but it would not carry passengers, he said: "I am a stockman, and they all know me. I am a stockman, and they will carry me." He then left, and went west from the depot to Elm street, thence south on Elm street. At this time an eastbound freight train was standing on the north track of the Hannibal & St. Joe Railroad, east of Elm street, and a west-bound train on the side track. Ten or 15 minutes afterwards the night operator with whom he had been talking heard a yell, as if from some one in distress, and at the same time heard a train moving. It was a very dark night. Both the east and west bound freights were there in the yards, the east-bound train being on the north and main track. About eight car lengths east of where the caboose of that east-bound freight stood that night, and about opposite the usual place for the west-bound freight to stand on the side track, the body was afterwards found, about 2 a. m., cut in two; the lower part between the rails of the main track, and the upper part between the passing track and the main track. The body was cut diagonally across. The body was first found by John Slaughter, a brakeman on the west-bound freight train. That train pulled into the yards, and stopped, with its engine at the tank, 15 or 20 yards west of the Hannibal depot, to take water, and then pulled in on the passing track, to wait for the east-bound train to pull out. The two trains were not on the tracks together for any length of time. After the east-bound train had gone, Slaughter started ahead to change the switch, and found the legs of the body between the rails of the north track, and the upper part of the body just south of the south rail of that track. Slaughter touched the face of the body, and found it not yet cold. Two east-bound freights passed through Chillicothe that night. The first one met the west-bound freight 10 miles east of Chillicothe. It stopped at Chillicothe about five minutes; did no switching. It pulled in slowly, with the headlight burning. The engineer could have seen a man or the body of a man on the track, but saw nothing of the kind. He examined the wheels of his engine at Brookfield, when he heard of the accident, and saw no indications of having run over a man. The other east-going freight had between 14 and 19 cars. It did no switching there. The engine stopped for 10 or 15 minutes at the tank, 10 or 15 feet east of the depot, which left the hind end of the train just east, or a car length or two east, of Elm street. At the rate at which it ran in, the engine, in the opinion of the engineer, would have thrown a man from the track. The headlight was burning, and the electric light was burning. The engineer could have seen a man, or the body of a man, on the track in front of his engine, if one had been there, but he saw nothing of the kind. An examination of the accompanying plat will aid in understanding the situation at the place of the accident:

Elm street, where Mr. Meadows was last seen alive, runs north and south across the railroad tracks, just west of the Wabash depot. The tank at which the east-bound engine was then taking water is indicated by a T-shaped mark between the Hannibal tracks, just east of the Hannibal depot. The...