Wilcox v. Central Accident Ins. Co. of Pittsburg

• Decision Date: 02 January 1912
• Docket Number: 83
• Citation: 82 A. 1093,234 Pa. 58
• Parties: Wilcox, Appellant, v. Central Accident Insurance Company of Pittsburg
• Court: Pennsylvania Supreme Court

82 A. 1093

234 Pa. 58

Wilcox, Appellant, v. Central Accident Insurance Company of Pittsburg

No. 83

Supreme Court of Pennsylvania

January 2, 1912

Argued October 18, 1911

Appeal, No. 83, Oct. T., 1911, by plaintiff, from judgment of C.P. No. 1, Allegheny Co., Dec. T., 1903, No. 87, for defendant non obstante veredicto in case of Peter K. Wilcox Administrator of the Estate of Oscar Ray Wilcox, deceased, v The Central Accident Insurance Company of Pittsburg. Affirmed.

Assumpsit on a policy of accident insurance.

At the trial the jury returned a verdict for plaintiff for $2,900.

On motion for judgment for defendant non obstante veredicto FORD, J., filed the following opinion:

This is an action on a policy of insurance. At the trial the defendant requested the court to instruct the jury that under the law and the evidence the verdict must be for the defendant. The request, however, was refused and a verdict found for the plaintiff. The defendant now moves for judgment non obstante veredicto, alleging error on the part of the court in refusing the request for binding instructions.

The policy sued upon is dated February 26, 1903, and insures Oscar Ray Wilcox against loss arising from certain accidents, and covenants and agrees in case of death caused solely by injury arising from external violence and accidental means to pay to his legal representatives the sum of $2,000.

The policy is made subject to certain conditions and prohibitions; among others, the following:

"(1) This insurance does not cover . . . . any injury, fatal or otherwise, of which there is not visible mark on the body, nor accident, nor death, nor loss of limb or sight, nor disability resulting wholly or partly, directly or indirectly, from the following causes, conditions or acts, or happening when the insured is affected by, or is under the influence of any such cause, condition or act, viz.:

". . . . Injuries intentionally inflicted upon the insured by himself or by any other person (injuries from unprovoked assaults excepted) getting on or off a moving conveyance using steam as a motive power (cable and electric cars excepted), or being in or on such conveyance not provided for transportation of passengers, or walking or being on the roadbed or bridge of any railway, railway employees excepted, violation of law; resisting arrest or fleeing from justice; voluntary over-exertion . . . . unnecessary exposure to danger."

It is contended by the defendant company that the insured met his death while walking or being on the roadbed of a railway, and was caused by unnecessary exposure to danger.

The circumstances attending upon the accident which occurred on March 18, 1903, are not in dispute.

The insured at the time of his death was about twenty years of age and resided with his parents in the village of Springdale, situate along the line of the West Penn Railroad some fifteen miles east of Pittsburg. He had lived there about five years. The Wilcox home fronted on a public highway which ran parallel with the right of way of the West Penn Railroad, upon which were maintained two tracks known as the east-bound and west-bound tracks. At this point there is no crossing of any character, the nearest one being approximately 300 feet east of the place of the accident, while there is another distant about one-quarter of a mile west. The tracks are below the grade of the public highway, and to reach the tracks from the home of the insured it was necessary to cross the public road and descend a bank about four feet in height.

In the evening, near seven o'clock, on the day of the accident the insured left his home, expressing an intention to visit a neighbor residing on the opposite side of the railroad. It appears that he reached the west-bound track, the one adjoining the public road, and as he stepped on or over the first rail was struck by the locomotive of a passenger train running west, sustaining injuries which resulted in his death. Mr. Kennedy, the engineer operating the passenger train, testified that he first saw Wilcox at a point distant about fifteen feet, and added, "The young man came down from the side of the public road and started or attempted to cross the track in front of the engine. We struck him and threw him off the right side."

An accommodation had been stopped at the switch and was standing on the east-bound track, the last coach of which was just opposite the place of the accident. Walter Holmes, a brakeman on this train, testified that he was standing on the rear coach and said, "When I first saw this boy he was coming over the bank, which is between the railroad, the north track and the public road, going to the railroad. I called him to stop, but he did not hesitate a second. He just came down on to the track, and I called to him again to look out, for I heard this train coming. . . . At that instant the train came down and struck him."

Mr. Barnes, called by the plaintiff, testified that he first saw Wilcox "as he started down over the bank and I hollered to him. Just about the time I hollered, the brakeman on the rear end of the train hollered at him. It was too late then for him to stop. He had started then, and after he got on the track we yelled again at him, but he did not appear to be able to get off."

It is apparent that the young man crossed the road, walked down the embankment and as he stepped upon or perhaps over the first rail of the west-bound track he was instantly struck by the engine. From the place where he descended the bank he had an unobstructed view looking east for a distance of about 300 feet.

The first question for consideration is as to whether or not the injuries, resulting in the death of the insured, were directly or indirectly due to "walking or being on the roadbed or bridge of any railway."

In DeLoy v. Ins. Co., 171 Pa. 1, the trial judge in construing a similar clause instructed the jury "that it was intended to cover all cases where a person is on a railroad bed when he had no business there. But when his business or other necessities call him on the railroad track or crossing for lawful purposes, and when he is injured while in the pursuit of his lawful calling; or when it becomes necessary to use the roadbed for a lawful purpose, and he should be accidentally killed, without any knowledge upon his part of the danger, he ought not in such case be excluded from recovery, if there was nothing else in the case." The instructions were approved as substantially correct because in harmony with the ruling of the court, on the same clause, in Burkhard v. Travelers' Ins. Co., 102 Pa. 262, wherein it was held: "The language of the exception clearly implies two thoughts: one, that the insured must not be on the roadbed or bridge for any length of time; the other, that the prohibition is not to guard against injury resulting from a defective roadbed or defective railway bridge, but the danger of injury from trains passing thereon."

The phrase, "walking or being on a railroad bridge or roadbed," cannot be construed with absolute literalness. If the insured had been walking along the track longitudinally he clearly would have been within the clause. Had he been crossing where there was a public way (Dougherty v. Pacific Mutual Life Ins. Co., 154 Pa 385), or if he was on the track for a lawful purpose, he would not have been within it. The question therefore is, whether he had a right to pass over the railroad at the point he chose to do so. If he was a trespasser in crossing as he did he would be walking or being on the roadbed within the meaning of the policy: ...