Shevlin v. Am. Mut. Acc. Ass'n

• Decision Date: 13 October 1896
• Citation: 68 N.W. 866,94 Wis. 180
• Parties: SHEVLIN v. AMERICAN MUT. ACC. ASS'N.
• Court: Wisconsin Supreme Court

94 Wis. 180

68 N.W. 866

SHEVLIN

v.AMERICAN MUT. ACC. ASS'N.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Action by Maria Shevlin against the American Mutual Accident Association to recover on a policy of insurance. There was a judgment for plaintiff, and defendant appeals. Reversed.

Action to recover on a policy of accident insurance. The policy contained this exception to the liability of the company: “This insurance does not cover * * * death or injury resulting wholly or in part, directly or indirectly, from exposure to unnecessary danger.” The answer alleged that the death of the assured was caused by an act within such exception, in that, on the 20th day of November, 1892, at about 7 o'clock in the evening, at Amherst Junction, on the line of the Wisconsin Central road, the assured climbed onto a rapidly moving freight car, and thereafter, as the train approached Amherst station, and while it was in rapid motion, he jumped off, and in doing so received the injury which caused his death. All the testimony bearing on the circumstances of the injury was given by Claus Swenson, who was in the company of the deceased at the time of the injury. His testimony is, in substance, as follows: “We were fellow laborers. On the 19th day of November, 1892, after supper, while a freight train was passing Amherst Junction, we climbed onto it at about the middle. Each climbed up the side of a car. It was dark. I could not see the length of the train. I could not see the deceased while we were riding on the car, but I could hear him. After we got on the train, we agreed that if it did not stop at Amherst we would jump off. As it approached Amherst, the speed was increased. I jumped off the side. He was still on when I jumped off. I supposed he got off. Did not see him. As I went toward the depot, after jumping off, I discovered the deceased, lying unconscious by the railroad track, and about two feet from the rail. His head was toward the rail, feet toward the fence.” Further evidence was produced, showing that the skull of the deceased was fractured, that he was not an employé of the road, and was riding upon the car without permission. At the close of the evidence counsel for the defendant moved the court to direct a verdict in defendant's favor, which was refused. The court submitted this question, only, to the jury: “Did the deceased, in getting upon the railroad car at Amherst Junction, and riding to or near Amherst station, and there leaving the car, expose himself to unnecessary danger?” The court instructed the jury on this subject as follows: “You are at liberty to infer from the evidence that he jumped, if you believe that to be the reasonable logic of the evidence; or that he fell off, if you believe from the evidence that such was the fact. If you conclude that he fell off, then was this action in climbing upon the moving box car, and riding there until the accident overtook him, unnecessarily dangerous, in view of the circumstances? And if you believe that he jumped from the car and was thereby injured, then, was it unnecessarily dangerous for him to climb and ride upon the car, and make the jump he did, in view of the purpose he had in view, and all the circumstances surrounding him at the time?” The jury answered the question, “No.” Thereupon defendant's counsel moved the court to set aside the verdict as contrary to the evidence, and for a new trial, which motion was overruled. Judgment was rendered in plaintiff's favor, and defendant appealed.M. C. Phillips, for appellant.

Jones & Jones, for respondent.

MARSHALL, J. (after stating the facts).

It was error for the court to leave it to the jury to speculate on whether the deceased fell or jumped from the car. In view of the undisputed evidence that deceased and his associate, Swenson, proposed getting off the train at Amherst; that it was agreed between them that if the train did not stop there they would jump off; that the train, instead of slowing up as it approached the station, appeared to them to be increasing in speed, whereupon Swenson jumped, and immediately thereafter found the deceased unconscious, lying beside the track,--there is no room for any reasonable inference other than that the deceased jumped from the moving car, and thereby received the injury which caused his death. If there is anything in the law of negligence that has been reduced to the degree of certainty requisite to a judicial code it is that, if a person unnecessarily jumps from a moving railway car, and is thereby injured, a recovery for his resulting damages is precluded on the ground of contributory negligence. So held even where the person had reached his destination, and the train had previously stopped, yet not for a reasonable length of time to allow him to alight. Jewell v. Railway Co., 54 Wis. 610, 12 N. W. 83;...