Whalen v. Peerless Cas. Co.

• Decision Date: 01 June 1909
• Parties: WHALEN v. PEERLESS CASUALTY CO.
• Court: New Hampshire Supreme Court

73 A. 642

75 N.H. 297

WHALEN

v. PEERLESS CASUALTY CO.

Supreme Court of New Hampshire. Coos.

June 1, 1909.

Transferred from Superior Court, Coos County; Chamberlin, Judge.

Action by Michael Whalen against the Peerless Casualty Company. The trial justice directed the jury to return a verdict for plaintiff for $20, whereupon the parties agreed, in case the ruling should be held erroneous, judgment should be entered for plaintiff for $100. Judgment for plaintiff for $100.

The plaintiff was 57 years old at the time of the trial. He was a resident of Berlin, and had lived for some years in a house westerly of the tracks in the yard above the station of the Grand Trunk Railway. About 2 o'clock in the afternoon of the day of his injury, he left his home to go to another part of the city, proceeding along a path which crossed the railroad tracks and is used by many people in passing through the railroad yard. It was a very stormy day, with the wind blowing from the northwest. The plaintiff testified that before going upon the tracks he looked and listened, but saw and heard nothing. There were three tracks at the place of crossing. As the plaintiff stepped upon the middle track, an engine used in switching backed down upon him, struck him, and cut off one of his legs above the ankle joint. The plaintiff was injured at a point on the railroad near what is called the "home semaphore." At a distance of about 150 feet easterly of the semaphore there was posted a notice, printed in English and French, as follows: "Warning. Keep off the railroad track." A like notice was posted a quarter of a mile west of the semaphore, near Hillside avenue. At a point 150 feet northerly of the semaphore, and near Green street, there was a notice as follows: "Grand Trunk Railway. The public are by law strictly prohibited from walking upon or over the railway track. By order." There was no sign or notice at the place where the plaintiff attempted to cross the track in the path leading through the yard. The plaintiff was unable to read English or French, and testified that he never saw the signs where they were posted. They were in legible condition. Other facts appear in the opinion.

Sullivan & Daley, for plaintiff.

John E. Allen and Rich & Marble, for defendant.

BINGHAM, J. At the time the plaintiff received his injury he held a policy in the defendant company, insuring him against the loss of a foot by complete severance at or above the ankle joint, in the sum of $100, subject to the proviso that, if the injury resulted "wholly or in part from voluntary exposure to unnecessary danger or obvious risk of injury," or resulted from or was received "while violating the law, or violating the rules of a public carrier affecting the safety of its passengers or the public," he should be entitled to receive but $20. The defendant pleaded the exceptions contained in this proviso in defense of the action; and, upon the submission of the evidence outlined in the statement of the case, the trial justice directed the jury to return a verdict for the plaintiff for $20. The parties then agreed that, in case the ruling directing the verdict should be held to be erroneous, judgment should be entered for the plaintiff for $100, with interest from the date of the writ and taxable costs. In directing the verdict the court ruled as a matter of law that the plaintiff's injury resulted from voluntary exposure to unnecessary danger or obvious risk of injury, or resulted from, or was received while, violating the law, or violating the rules of a public carrier. If any one of these rulings was correct, the verdict should be sustained; otherwise it should be set aside, and a verdict entered in accordance with the agreement of the parties.

The meaning of the clause "Voluntary exposure to unnecessary danger," as used in accident policies, has frequently been before the courts. In Keene v. Association, 161 Mass. 149, 151, 36 N. E. 891, the language of the exception was "any voluntary exposure to unnecessary danger, hazard, or perilous adventure," and it was held that the provision did not contemplate "an involuntary exposure to unnecessary danger"; that "a merely inadvertent or unintentional exposure to a danger of this kind is not voluntary, but involuntary. A voluntary exposure * * * implies a conscious, intentional exposure—something which one is consciously willing to take the risk of." In Burkhard v. Insurance Co., 102 Pa. 262, 48 Am. Rep. 205, it was said: "A clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist, yet the exposure thereto, without any knowledge of the danger, does not constitute a voluntary exposure to it. * * * The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental." In Lehman v. Casualty Co., 7 App. Div. 424, 429, 39 N. Y. Supp. 912, 915, it was said that "one cannot be said to be guilty of a voluntary exposure to danger unless be intentionally and consciously assumes the risk of an obvious danger." In numerous other cases the same conclusion has been reached. It is unnecessary to refer to them at length. See Badonfeld v. Association, 154 Mass. 77, 27 N. E. 769, 13 L. R. A. 263; Anthony v. Association, 162 Mass. 354, 357, 38 N. E. 973, 26 L. R. A. 406, 44 Am. St. Rep. 367; Williams v. Association, 133 N. Y. 306, 31 N. E....