Lehman v. Great Eastern Casualty & Indemnity Co.

The policy upon which this action is brought contains the following provision, namely:

“This insurance does not cover * * * voluntary exposure to unnecessary danger; * * * nor any injury, fatal or otherwise, caused directly or indirectly (wholly or in part) * * * while violating the law.”

And the defendant seeks to avail itself of this provision as a means by which to escape liability upon its contract of insurance, its contention being that the death of the assured was directly attributable to his violation of the law, as well as to a voluntary exposure upon his part to an unnecessary danger. These issues were tendered

In support of the claim that the death of the plaintiff’s husband was caused by a violation of the law, the attention of the court is directed to section 53 of the general railroad law (Laws 1892, c. 676) which provides that:

“No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall he laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.”

It is insisted that when Lehman left Sycamore street, and attempted to reach the Ginsburg yard, in the manner he did, he was guilty of a plain violation of this provision, which was, of itself, sufficient to defeat a recovery. It would, perhaps, be an adequate answer to this contention to suggest that, up to the time the assured met Ms death, he had not “walked upon or along” the railroad track. He had, to be sure, come over a walk or path running along the west side of and parallel with the tracks; but it will hardly be claimed that tMs, of itself, constituted any violation of the statute. It is urged, however, that, when struck, he was in the act of stepping upon the tracks, with the obvious design of crossing them, in order to reach his point of destination; and this is unquestionably true, but does this fact work any change in the situation? We tMnk not, when considered in connection with certain other facts and circumstances concerning which there is no dispute. And, in saying tMs, it might even be assumed, that the endeavor to cross the track was equivalent to walking thereon. It may also be noticed in this connection that, at the point where the decedent was intending to cross, the railroad tracks were not “laid across or along” .a public street or highway, but, nevertheless, it was at a place which the public had been in the habit of crossing for a long period of time; it was the.customary, and, practically, the only, means people on foot had of reaching the works of Ginsburg & Sons; and its use by the public, for this purpose, had been acqmesced in by the railroad company for a sufficient length of time for such uses to ripen into a license, and the assured, therefore, had a right to avail himself of that license, and, in doing so, it cannot be said that he was violating the law. Nicholson v. Railway Co., 41 N. Y. 525 ; Barry v. Railroad Co., 92 N. Y. 289 ; Byrne v. Railroad Co., 104 N. Y. 362 , 10 N. E. 539 . Right here it is proper to bear in mind that the statute referred to forms no part of the criminal law of this state, and that no penalty is imposed, in express terms, for a violation thereof. It is simply one of the provisions of the general railroad act, and while, in a somewhat restricted sense, it may be said to have been induced by public considerations, it was undoubtedly designed, primarily, for the protection of the railroad companies; and therefore, when they consent to the use of their tracks by the public for the purposes of a highway crossing, it would require a somewhat strained construction of the section to hold that the people availing themselves of the privilege thus afforded became, ipso

We turn, therefore, to the second proposition advanced by the defendant, for the purpose of determining what consideration it ought to receive, and to what extent the facts óf the case sustain the contention that the assured lost Ms life in consequence of his “voluntary exposure to unnecessary danger.” And here, again, the court is relieved from the embarrassment which usually accompanies an attempt to review a case presenting conflicting statements of fact, for, most fortunately, there is no dispute as to the circumstances attending the accident, nor is there any reason to doubt that its one controlling cause was the carelessness of Lehman himself. But, with this much conceded, the important question still remains, does this act of his, careless and heedless as it undoubtedly was, relieve the defendant from the obligation of its contract of insurance? Some authorities may be found among the earlier cases for the contention that, in construing this provision of the policy, “negligence” and “voluntary exposure to unnecessary danger” must be regarded as equivalent terms. Sawtelle v. Assurance Co., 15 Blatchf. 216 , Fed. Cas. No. 12,392; Hoffman v. Insurance Co. (N. Y. Sup. Ct. 1871), not officially reported, but discussed in 7 Am. Law Bev. 594. But the rule now seems to be virtually settled in most of the states that the two expressions are not necessarily nor usually synonymous. Miller v. Insurance Co., 92 Tenn. 167 , 21 S. W. 39 ; Hull v. Association, 41 Minn. 231 , 42 N. W. 936 ; Schneider v. Insurance Co., 24 Wis. 28 ; Freeman v. Insurance Co., 144 Mass. 572 , 12 N. E. 372 ; Williams v. Association, 133 N. Y. 367 , 31 N. E. 222 ; Id., 82 Hun, 269 , 31 N. Y. Supp. 343 . And the reason for this rule is stated by Allen, J., in Keene v. Association, 161 Mass. 149 , 36 N. E. 891 , to be that, “by taMng a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or in part from his own inadvertence.”

We come, therefore, to the consideration of what is meant by a “voluntary exposure to unnecessary danger,” and this involves a definition of the word “voluntary.” As we regard it, a voluntary performance of an act must require an exercise of the will of the actor. In other words, it is an act done in obedience to, and regulated by, the will of the person who does it. It follows, therefore, that it must be done designedly, and not accidentally; and, consequently, one cannot be said to be guilty of a voluntary exposure to danger unless he intentionally and consciously assumes the risk of an obvious danger. Miller v. Insurance Co., supra; Keene v. Association, supra; Williams v. Association, 82 Hun, 269 , 31 N. Y. Supp. 343 , and 133 N. Y. 367 , 31 N. E. 222 . The case last cited furnishes a fair illustration of the distinction which we are seeking to draw, for there the assured, in a spirit of bravado, sat down upon a railroad track in front of an approaching engine, and, while so doing, was struck and killed. This was a conscious, deliberate act, and was therefore, beyond all question, one which was voluntary upon

These considerations lead to the conclusion that no error was committed by the trial court in its direction of a verdict in favor of the plaintiff, and that, consequently, the judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs. All concur.