Quinn v. N.Y. Life Ins. Co.

• Decision Date: 26 October 1923
• Docket Number: No. 73.,73.
• Citation: 224 Mich. 641,195 N.W. 427
• Parties: QUINN v. NEW YORK LIFE INS. CO.
• Court: Michigan Supreme Court

224 Mich. 641

195 N.W. 427

QUINN

v.NEW YORK LIFE INS. CO.

No. 73.

Supreme Court of Michigan.

Oct. 26, 1923.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Action by Agnes M. Quinn against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Fellows and Clark, JJ., dissenting.Cross, Foote & Sessions, of Muskegon, for appellant.

James E. Sullivan, of Muskegon (Edward C. Farmer, of Muskegon, of counsel), for appellee.

BIRD, J.

Defendant insured the life of Leo J. Quinn, of Muskegon, in the sum of $4,000, and promised to pay the same to Agnes Quinn, his wife, upon receipt of due proof of death, etc. The policy then provides that:

‘Or eight thousand dollars, double the face of the policy, upon receipt of due proof that the death of the insured, before the allowance of any disability benefit, was caused directly by accident while traveling as a passenger on a street car, railroad train, steamship licensed for regular transportation of passengers, or other public conveyance operated by a common carrier.’

On July 5, 1920, Mr. Quinn boarded a crowded street car going east on Lake street to ride a few blocks to his home. The train consisted of a motor car and trailer. He rode on the front step of the motor car, near the motorman. He indicated to the motorman that he would like to get off at Addison street. When the train reached Addison street, it slowed down, and just before it stopped he stepped off, or, while stepping off, a taxicab going in the same direction, struck and killed him instantly.

Upon presentation of proofs of death, defendant paid the $4,000 insurance to plaintiff, but refused to pay the double insurance, because it asserted the insured was killed by an automobile accident, and not while he was traveling as a passenger on a street car. On the trial defendant had verdict by direction of the court. This judgment was set aside in this court on a question of practice. 218 Mich. 650, 188 N. W. 444. The case was retried, and resulted in a verdict for plaintiff for the full amount of her claim.

The trial court instructed the jury:

‘I charge you, gentlemen, that if Leo J. Quinn, at the time he was struck by the taxicab, had already released his hand from the street car and stepped away from it, but did not reached the ground or pavement with his foot or feet, or if he, when he was struck, had released his hand from the street car and had already reached the pavement or ground, but was still being carried towards the curb by the momentum of his stepping or jumping off, and away from the street car, even if he had taken one or more steps after reaching the pavement or ground, then he was, within the meaning of the policy of insurance, still traveling as a passenger upon the street car, and the defendant is liable in this case.

‘On the other hand, gentlemen, if Mr. Quinn had, at the time he was struck by the taxi, safely alighted from the street car, having released his hold of the hand rail, and had reached the pavement or ground, and was walking or running towards the curb, as a man ordinarily walks or runs, of his own volition, and was not, at the time he was struck, being carried towards the curb by the momentum of his stepping or jumping off the street car, then he was not within the meaning of the policy of insurance, traveling as a passenger on the street car, and the plaintiff in that event cannot recover in this case.’

These paragraphs raise the important and controlling questions in the case. Defendant's position, as I understand, is:

(a) That a verdict should have been directed in its behalf, because the proofs did not show that Quinn was traveling as a passenger on the street car when he met his death.

(b) Defendant is also at variance with the two paragraphs of the charge quoted, because it insists the proofs show that Quinn had left the car, reached the pavement, and completely disconnected himself from the car.

(c) It is further contended that, as between plaintiff and the defendant, a different rule should be applied than between plaintiff and the street car company on the question whether the insured was a passenger at the moment he was struck.

1. Considering the last question, we are unable to see why any distinction should be made between the insurance company as a defendant and the street car company. At the time the provision, ‘while traveling as a passenger on a street car,’ etc., was adopted by defendant and made a part of its contract, that phrase had well-understood meaning in the law, and it is reasonable to suppose that the meaning given to it by the courts was well understood and considered by defendant before making it a part of its double liability, and it was well known by both parties when the contract was made that, should the parties afterwards disagree upon the question of liability, the courts would probably give the language the same construction they had given it in cases where transportation companies were defendants. We cannot agree with defendant in this suggestion.

2. With this question eliminated, the important question gets around to this: Was Quinn a passenger on the street car when struck by the auto? In discussing the question as to when the relation of carrier and passenger on street cars terminates, it is said:

‘The general rule just considered, that, in the case of a carrier having exclusive control or occupation of its tracks and stations, one traveling may still retain the status of a passenger after alighting from the carrier's vehicle, is from the nature of things not applicable to carriers not so situated, as, for instance, in the case of persons traveling on street railway cars. While a person attempting to alight from a street car remains a passenger until he has accomplished the act of alighting in safety, and the carrier owes to the passenger attempting to alight that very high degree of care and attention which the law puts upon it generally, to the end of promoting the safety of its passengers, and will be liable for negligent injury to the passenger while so alighting, it is the generally accepted view that one who has alighted from a street car and is in safety upon the highway is no longer a passenger, but is thenceforth a traveler upon the highway, and subject to all the duties and obligations imposed upon such travelers, and the railway company is not responsible to him as a warrier for the condition of the street, or for his safe passage from the car to the sidewalk.’ 4 R. C. L. 1047, and cases cited.

This rule is followed in Michigan: Spangler v. Railway, ...