Rebman v. General Acc. Ins. Co.

• Citation: 217 Pa. 518,66 A. 859
• Decision Date: 22 April 1907
• Docket Number: 105
• Parties: Rebman, Appellant, v. General Accident Insurance Company
• Court: United States State Supreme Court of Pennsylvania

66 A. 859

217 Pa. 518

Rebman, Appellant, v. General Accident Insurance Company

No. 105

Supreme Court of Pennsylvania

April 22, 1907

Argued October 26, 1906

Appeal, No. 105, Oct. T., 1906, by plaintiff, from order of C.P. No. 1, Allegheny Co., Sept. T., 1903, No. 132, refusing to take off nonsuit in case of Catherine Rebman Administratrix of the Estate of Mary W. Rebman, deceased, v The General Accident Insurance Company of Philadelphia. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before BROWN, J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was refusing to take off nonsuit.

The judgment is affirmed.

Willis F. McCook, for appellant. -- The case was for the jury: Boulf ois v. Traction Co., 210 Pa. 263; Keene v. Accident Assn., 161 Mass. 149 (36 N.E. Repr. 891); Irwin v. Accident, etc., Assn., 127 Mich. 630 (86 N.W. 1036); Travelers' Ins. Co. v. Mitchell, 47 U.S. App. 260 (78 Fed. Repr. 924); Chaplin v. Ry. Pass. Assurance Co., 6 N.Y.S. Ct. 71; Columbia Accident Co. v. Sanford, 50 Ill.App. 424; Schneider v. Provident Life Ins. Co., 24 Wis. 28; Eppendorf v. Brooklyn City, etc., R.R. Co., 69 N.Y. 196; Fidelity & Casualty Co. v. Sittig, 79 Ill.App. 245; Anthony v. Mercantile Mut. Accident Assn., 162 Mass. 354 (38 N.E. Repr. 973).

Wm. W. Wishart, for appellee. -- The clause "voluntary exposure to unnecessary danger" has been construed in the following cases: Burkhard v. Travellers' Ins. Co., 102 Pa. 262; Sawtelle v. Ry. Pass. Assurance Co., 15 Blatch. 216; De Loy v. Ins. Co., 171 Pa. 1; Smith v. Mut. Accident Assn. 104 Mich. 634 (62 N.W. 990); Cornish v. Accident Ins. Co. L.R., 23 Q.B. Div. 453; Tuttle v. Ins. Co., 134 Mass. 175.

We submit that the case of Small v. Travellers' Protective Association of America, 45 S.E. Repr. 706, rules the case at bar. See also Roul v. Ry. Co., 85 Ga. 197 (11 S.E. Repr. 558); Bacon v. D., L. & W.R.R. Co., 143 Pa. 14.

There are numerous cases in Pennsylvania which support this rule. Among these may be cited: Railroad Co. v. Aspell, 23 Pa. 147; N.Y., etc., R.R. Co. v. Enches, 127 Pa. 316; Boulfrois v. United Traction Co., 210 Pa. 263; Tobin v. Penna. R.R. Co., 211 Pa. 457.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

This action was on an accident insurance policy which contained among others these provisions: "Nor does this contract extend to nor insure against death or any kind of disablement resulting wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger." "The certificate holder is required to use all due diligence for personal safety and protection."

The insured had frequently taken the 1:02 p.m. train of the Pittsburg & Lake Erie Railroad at a station near his home for Pittsburg. Several days before the accident that resulted in his death, orders had been given not to take on passengers at this station, but mail was received and discharged there. The insured did not know of this order. He went to the station expecting the train to stop. He saw it approach the station with steam off and at reduced speed. While it was running six or eight miles an hour, he took hold of the rail at the front platform of the last car with his left hand, placed his left foot on the lower step, and was in the act of raising his body when his hold was broken and he fell backward and was killed. He was nearly sixty-six years of age; five feet five and three-quarter inches high; and weighed 184 pounds. He had an umbrella under his left arm. When he seized the hand rail of the car with his left hand, the train was passing to his right. He did not move with it, but stepped directly on, as a person would step on a standing car. The speed of the train was accelerated about the time he took hold of the rail, but the contention that he was thrown off by a sudden jerk or jar of the train after he was safely on the step is not sustained by the testimony. He did not succeed in getting on the step, but was in the act of doing so with his knee bent and his body inclined toward the car, when he fell.

Under this state of facts, was a judgment of nonsuit properly entered? The question is not strictly whether the insured was negligent, but whether he exposed himself to a risk not covered by the policy. The words "voluntary exposure to unnecessary danger," in the clause exempting from liability, have been construed by this court, and generally as an intentional and unnecessary exposure to danger so obvious that a prudent person exercising reasonable foresight, would have avoided it: Burkhard v. Travelers' Insurance Co., 102 Pa. 262; De Loy v. Travelers' Insurance Co., 171 Pa. 1. In the case last cited, it was said by STERRETT, C.J.: ". . . if a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, then he may be said to have exposed himself...