Appeal
from Circuit Court, Lawrence County.
FULLER
J.
As the
beneficiary named in an accident policy held by her husband
at the time of his death, plaintiff recovered the full amount
claimed, and the defendant appeals.
The
injury resulting in the death of Mr. Richards occurred in the
afternoon of the 7th day of April, 1900, in the vicinity of
the Sioux City Stockyards, near the Seventh street crossing.
When first seen in that locality, he was lying face downward
on the top of a freight car loaded with horses belonging to
him, and which he had shipped from Whitewood, in this state.
At this time the car was standing still, but the railroad
employés were making up a train; and, as soon as this
particular car was reached, the yardmaster discovered
Richards lying in the position above mentioned, on top of the
car, with his head on the running board. Concerning the
matter, one of the witnesses testified in part as follows
"When the cars were coupled, a railroad man--I think it
was the yardmaster--went up to this man Richards, took him by
the shoulder, and shook him, and told him he would have to
get down and go into the way car, as the train was about to
pull out. The fellow did get up, and commenced to look around
as though he didn't know where to get down. The railroad
man told him to come down this way, and come down the ladder.
The railroad man went down the ladder. Mr. Richards, instead
of going down the ladder, took hold of the brake on the other
car, and stepped over onto the
next car. By this time the yardmaster had got down onto the
ground, and we were looking up to see what kind of a move the
fellow was going to make next. Just then he staggered off the
footboard on the side of the car, and fell off. One of the
railroad men cried: 'Look out! the man is going to fall.
For God's sake! let's catch him.' The three of us
stepped up to the side of the car and put our hands up to
save the man from falling, but, instead of rolling off as we
expected he would, he turned, and staggered and fell, and
went right through our arms, and struck on the rail next to
the track adjoining the track where the cars stood. The
distance between the rail on which his head struck and the
next rail underneath the car from which he fell I would say
was about four or six feet. After he struck the rail he was
unconscious." The foregoing testimony is fully
corroborated by the yardmaster, who further testified that
Richards had ridden on the top of this car from the Union
Stockyards to the place where the car stood when the accident
occurred, and that the car was to be taken into a freight
train to go north at about 3:50 p. m. Concerning the time
place, and circumstances, he further stated that "the
accident occurred at about 3:30 p. m. When I first saw
Richards, he was lying down on top of the car, his feet
toward the outside, his face resting on his arms, and his
head about the middle of the car. His feet were just about
the outer edge. After this car came up from the stockyards
with Richards riding on it, we were waiting for these two
cars, and shoved them into the head end of the train. I rode
the two cars in, stopping them north of the Seventh street
crossing, as the rest of the train was below Seventh street.
After stopping them, I spoke to Richards. I next spoke to
Richards on top of the car, asking him if that was his car.
He said it was, and asked me where the caboose was. I showed
him the caboose on the rear end of the train, and told him he
would have to come down that side ladder--the one I was just
coming down. Then he sat up as I was coming down, but he had
not stood up. I then went down the ladder to the ground. I
next saw him just as he was stepping to the next car south or
west, when he was in a staggering position. He was just in
the act of stepping over to the next car. His body was on the
other car, and I think he had hold of the brake wheel. He
next took two or three steps first one way and then the
other. He balanced for a moment on one foot on the edge of
the car, and then pitched head-first to the ground."
The
insured is classified in the policy as "a cattle dealer
or broker visiting yards by occupation," and the insurer
is obligated to pay his widow $1,250 in case death resulted
from bodily injuries "effected during the time of this
insurance through external, violent and accidental
means," provided, among other things, that "this
insurance shall not cover injuries from voluntary exposure to
unnecessary danger, or from intoxication or while
intoxicated. Nor shall this insurance cover accident
injuries or death, or loss of limb or sight, resulting
directly or indirectly from entering or trying to enter or
leave a moving conveyance using steam as a motive power
(except cable and electric cars) or...
