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Duncan v. Preferred Mutual Accident Ass'n

59 N.Y. Super. Ct. 145 27 Jones & S. 145 Court N.Y. Super. Ct. Decision date 1891-03-02 English

Contents

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p. 145
SEBASTIAN DUNCAN, Jr., Respondent v. THE PREFERRED MUTUAL ACCIDENT ASSOCIATION OF NEW YORK, Appellant.

Headnote

Insurance, policy of, against bodily injuries effected through external violent and accidental means.
The death of Jensen, who was the subject of this policy, was caused by his being struck and run down by a steam locomotive and its train, close to the platform of the Stamford station in the State of Connecticut. The opinion of the court sets forth the facts in the case and the. questions at issue on the appeal. The defendant claims that the testimony establishes that Jensen’s death resulted from his own negligence. The policy provided that the member insured “is required to use all due diligence for personal protection." Held, that there was sufficient testimoiw to call for a verdict of the jury on the question of whether the death resulted from the negligence of the deceased.
By the conditions of the policy the company was not to be liable if the death resulted “from voluntary exposure to unnecessary danger," and the appellant claims that the testimony disclosed a breach of this covenant by the deceased. Held, if there was not a voluntary exposure, there was not a breach. The word voluntary, of course, in some way refers to the action of the will. Used as it is in the policy by an insurance company for the comprehension of men of ordinary information and intelligence, it does not involve the opposing views of philosophers as to free will or determination. But by all it is considered that the will acts from motives springing from things external to the will, and that such motives have an influence more or less controlling upon the will and tending to cause it to act in a certain way. In common apprehension, and in respect to the ordinary transactions of life, if the external circumstances would have such a controlling influence upon a man of ordinary prudence and intelligence as to cause him to take a certain course, that course would not be considered voluntary on his part. His course would not be freely taken. It would be controlled by external circumstances. In this ease it was a question of fact for the jury to determine as to the extent to which Jensen was controlled by the external circumstances, and the jury would be bound to find that this act was not voluntary if it was such as a man of ordinary prudence would be induced to do by the circumstances.
The appellant further claims that the injury was not “ accidental." Held, that the meaning of this word seems to be some result not brought about by the purpose or intention of the insured, and certainly this was a question for the jury to consider and pass upon.
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The policy excepts the hazard “ of standing or loathing on the road bed or bridge of any railway.” Held, that this clause does not include such a crossing of the track of a railroad as the deceased made. To stand or walk on a road bed implies some sensible duration of the act, and does not describe a mere crossing, made for a justifiable purpose, such as reaching the station.
Held, that the judge at trial term did not charge erroneously “ that if the jury find that plaintiff’s assignor was passing the crossing in question, upon an express or implied invitation or inducement of the railroad company, he was rightfully there.” It is apparent from the rest of the charge that this meant and was understood to mean, rightfully, as regarded the railroad company. It was involved in the facts to be passed upon by the jury, to consider whether Jensen was a trespasser, among other things, bearing upon his conduct.
There was an exception to the charge “ that plaintiff’s assignor, in crossing the tracks where he did, was not a trespasser, and the plaintiff has a right to recover if the injury complained of was not caused by want of ordinary care.” Held, that the evidence established the fact that Jensen was not a trespasser. The remainder of this part of the charge, if considered with the rest of the charge, was not injurious to the appellant, even if, taken by itself, it might not be correct.
Held, that the trial judge was correct in charging, that to establish the defence that Jensen met his death “ by voluntary exposure to unnecessary danger, the jury must find that the act of so exposing himself was known or ought to have been known to him, and that his crossing the track was done voluntarily with the full knowledge of the danger.” There seems to be some word inadvertently omitted from the charge as printed in the case- The charge means, that to sustain the defence the deceased must have known or ought to have known the danger, and that his act was voluntary and with the knowledge of the danger. The deceased did not voluntarily expose himself to danger if he did not know or was not bound to know the existence of that danger. Held, that the court was right in refusing to charge that Jensen was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have used under the same circumstances.
Before Sedgwick, Ch. J., and Truax, J.
Decided March 2, 1891.
Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial made upon the judge’s minutes.
George W. Sill, attorney and of counsel, for appellant, argued:—
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I. The death of the insured resulted from his own negligence. In his complaint the plaintiff alleges that the insured “ was struck and killed by a railroad train without negligence on his part, and that his death was caused by an accident within the terms of the policy.” The defendant by its answer denies that the death of said insured was caused by “ an accident ” within the terms of the policy, but, on the contrary, alleges that, at the time and place stated in said complaint, “ the said insured unnecessarily and negligently ran upon or across the tracks of the New York, New Haven and Hartford R. R. Company while an express train was rapidly approaching the station of said railroad company, and while he (said insured) was being warned by the employees of the said company against so doing, and that having been struck by the engine of such train his death resulted therefrom.” That the death of the insured did or did not result from negligence on his part, is therefore made one of the principal issues of the case.
II. The death of the insured was not caused by an “ accident ” within the intent and meaning of the insurance contract. The term “ accident ” defined. (1.) “ Happening by chance, unexpectedly, taking place not according to the usual course of things.” Barry v. U. S. Mut. Acc. Ass’n, 23 Fed. Rep. 714 . (2.) It is “Any event which takes place without the foresight or expectation of the person acted upon, or affected by the event.” Ripley v. Railwa Pass. Assurance Co. (U. S. Cir. Court for Western Michigan), 2 Bigelow Life & Acc. Cases, 738. (3.) “It is something Avhich takes place Avithout any intelligent or apparent cause, without design, and out of course.” Mallory v. Travelers’ Ins. Co., 47 N. Y. 52 . From the circumstances as they are shown to have existed in the railroad yard at Stamford, when Jensen was in the act of crossing the eleven tracks between Pacific street and the passenger station, the folloAving
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facts are conclusively established: (a) That when he reached tráck No. 6, and was there warned from, the track by th,e brakeman of the train backing towards the freight house, he then knew that he was in a place of danger, (b) That when he reached track No. 3, or had stepped therefrom toward track No. 2, the view in the direction of the Atlantic street crossing was unobstructed, and the train could be seen rapidly approaching, (c) That although warned by the shouts of the employees of the road to “ Look out for the Express! ” he continued funning toward the station platform. Given, then, these facts in support of the belief that Jensen, as a man of observation and experience, knew of and realized the impending danger, and that, despite such knowledge, he rushed to his death, how shall his acts be characterized, in the light of the definitions hereinbefore cited ? As has been well said, “ There are certain acts shown both by experience and common sense to be dangerous, such as jumping on or off a railroad car while in rapid motion, or crossing a railroad track without looking - to see whether a train is approaching ; ” and when all of the facts in connection with Jensen’s death are fairly considered, it seems a perversion of language to speak of such death as having been “ caused by an accident.” The injury did not happen without “ apparent cause ” or “ out of course ” (Mallory v. Traveler’s Ins. Co., supra), but, on the contrary, “ the precise injury happened to him which he had reason to fear ” (Tuttle v. Traveler’s Ins. Co., 134 Mass. 175 ).
III. The death of the insured resulted from “ voluntary exposure to unnecessary danger,” within the terms of the policy. It appears from the testimony of the plaintiff’s witnesses that Jensen’s route of travel to the station, was from Collender’s billiard factory on Pacific street, or from near that point, and that, before starting upon the short journey which
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culminated in his death, he exercised a power of choice. It might, perchance, have taken him a minute or two longer to have gone by the safe route through Manhattan street to the Atlantic street crossing, where but one track was to be crossed, but that he did not do; as against the safe way, the more perilous way was chosen, and in his charge to the jury Judge Dugro thus spoke of Jensen’s act: “ Well, Jensen’s act was certainly voluntary, because if he did not want to go across the track and willed it, he wouldn’t have gone there.” This declaration on the part of the trial court should be given its due weight. It is universally regarded as negligent for one to go upon the tracks of a railroad company, where, as at Stamford, “ from fifteen to twenty trains were arriving and departing between the hours of 3 and 6 o’clock in the afternoon, and switch engines were running up and down the yard all the time.” Jensen was not a stranger to the locality, but had he been, much more was it incumbent upon him to exercise at least ordinary prudence, and to have given heed to the timely warnings which were given him. “It is negligence to attempt to drive a team across the track of a railroad in full view of an approaching locomotive, on account of the risk of becoming entangled in the rails, or of the teams shying or balking, even where there is apparently time to cross. So it is to drive a team toward a crossing at such reckless speed as to be unable to stop or turn on reaching the track. So it is negligent to walk or run across, in full view of a coming train, unless it is very clear that there is ample time to cross, after allowing for the possibility of a misstep. It is not enough that the chances are equally balanced; nice calculations are not allowed.” Shearman & Redfield on the Law of Negligence, Vol. 2, § 475, and cases there cited. The case of Wilds v. Hudson River R. R. Co., 29 N. Y. 315 , the circumstances there detailed were
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quite similar to those now under consideration. The plaintiff in that case was nonsuited at the circuit, and the judgment was affirmed in both the general term and the Court of Appeals. When commenting upon the plea of “ inevitable accident ” “ or unavoidable injury,” the Court of Appeals, in another case (Austin v. N. J. Steamboat Co., 43 N. Y. 80 ), say: “ A party cannot avail himself of this defence, who, by his own negligence, gets into a position which renders the accident inevitable. He must exercise care and foresight to prevent reaching a point from which he is unable to extricate himself.” So far as appears from the evidence, there was nothing whatever to prevent Jensen from stopping before he reached the main track. He “ voluntarily ” entered upon the tracks at Pacific street, there being another and entirely safe way for reaching the station, and “voluntarily ” continued in the way thus chosen. The danger, small perhaps, at the first, increased with every step he took from the starting point to the place of his death. There is not a word of evidence in the case tending to explain or to justify the exposure which he voluntarily incurred. That the danger was imminent when he reached the third track from the station platform is abundantly proven.
IV. The law of negligence applies to insurance contracts which contain provisions that the insured shall “use all due diligence for personal safety and protection,” and that he shall not “voluntarily expose himself to unnecessary danger.” In the case of Sawtelle v. Railway Pass. Assurance Co., 15 Blatch. 216, decided in 1878—the insured met with death while passing from one car to another in the night time, when the train was in full motion. The defendant company having refused to recognize the claim of the plaintiff as valid under the terms of the policy, suit was brought thereon, and the defendant, in its answer to the petition, invoked the following clauses
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in the policy as against plaintiff’s right of recovery: “ No claim for insurance shall be made when the death or injury may have happened in consequence of exposure to unnecessary danger, hazard or perilous adventure,” and that “ standing, riding or being on the platform of moving railway coaches, or entering, or attempting to enter, or leave any public conveyance using steam as a motive power, while the same is in motion, are hazards not contemplated by the contract.” Upon the trial of the case before Judge Wallace (then District Judge for the Northern District of New York), a verdict was directed for the defendant, and in the opinion denying plaintiffs’ motion for a new trial Judge Wallace characterizes the act of the deceased which resulted in his death as follows: <c Negligence and £ exposure to unnecessary danger ’ are equivalent terms; and, if the jury had found that the deceased did not lose his life £in consequence of exposure to unnecessary hazard,’ the verdict could not have been sustained upon the settled rules of the law of negligence. There were no disputed facts and no disputable inferences which presented a question for the jury. The direction for a verdict for the defendant was right, upon the ground that the assured was guilty of negligence, and met his death in consequence of exposure to unnecessary hazard. The motion for a new trial is denied.” In the case of Aiken v. Penn. R. R. Co., 130 Penn. St. Rep., it appeared that the decedent was attempting to cross ten or eleven railroad tracks at grade occupying 150 feet of space. It was at night, and the view was obstructed on one side by standing cars, etc., and on the other a train was standing with an engine blowing off steam. After decedent and his companion had crossed five or six tracks they saw an approaching train, and the decedent, against the remonstrance of his companion, attempted to cross the track upon which the train was approaching and was killed.
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When reviewing the action of the trial court, in directing a verdict for the plaintiff, the appellate court says: “ This is a perfectly clear case of contributory negligence, unrelieved by any circumstances which the jury should have been allowed to consider as an excuse for a violation of the plainest dictates of prudence and the settled rules of law. It is indisputable that the deceased saw the train while he was in a place of safety, and voluntarily took the chances of crossing in front of it. In the face of this patent fact the other circumstances—the danger of the place, the rate of speed of the train, the absence of warning, the obstructions to sight and hearing—became-totally unimportant, and the plaintiff should have been nonsuited, or a verdict directed against her. The rule as to stopping applies equally to persons walking, as to persons driving. There is no distinction, in the nature of things, except of degree, as to danger, and none is recognized in the cases. It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That failure to stop is not merely evidence of negligence but negligence per se has been said so often, from Railroad Co. v. Heilman, 49 Pa. St. Rep. 60, to Greenwood v. Railroad Co., 124 Ib., that to cite the cases would be wearisome. See also, to like effect: Irey v. Penn. R. R. Co., 132 Pa. St. Rep. 563 ; Cordell v. N. Y. C. & H. R. R. Co., 75 N. Y. 330 ; Moyer v. Same, 88 Ib. 350; Wendell v. Same, 91 Ib. 428-9 ; Becht v. Corbin, Receiver, etc., L. I. R. R. Co., 92 Ib. 658 ; Tolman v. Syracuse R. R. Co., 98 Ib. 198; Woodward v. R. R. Co., 106 Ib. 369; Young v. R. R. Co., 107 Ib. 500; Redmond v. R. W. & O. R. R. Co., 10 N. Y. Supp. 330 , and cases there cited.
V. Jensen’s death resulted from a breach of that condition of the policy which provides that “ stand
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ing or walking on the roadbed or bridge of any railway are hazards not contemplated or covered by this insurance, and no sum will be paid for injuries or death in consequence of such exposure, or while thus exposed.” Without controversy, Jensen was upon the" track of the New York, New Haven and Hartford E. E. Co. when struck by the engine and killed. All of the witnesses who saw him agree upon this point. Quite apart from the other defences, that Jensen’s death resulted from the failure to “ use all due diligence for personal safety and protection,” and from his negligence or “ voluntary exposure to unnecessary danger ” in going upon the tracks as he did, we have then, the undisputed fact that he was upon the track of the railroad company when he was struck by the engine and killed. This condition was quite as binding upon him as the other conditions, the breach of which is pleaded by the defendant, and the plaintiff is, therefore, not entitled to recover. Hoffman v. Travelers’ Ins. Co., cited in Bliss on Life Insurance, pp. 719-20; Tuttle v. Travelers’ Ins. Co., 134 Mass. 175 ; Neill v. Travelers’ Ins. Co., 31 Canada Common Pleas Reports, 394; Cornish v. Accident Ins. Co., 23 Law Reports, (Q. B. D.) 453.
Paul Wilcox, attorney, and David D. Duncan of counsel, for respondent, argued:
I. Negligence, as the term is ordinarily employed in the books, is not involved in this case. This is an action upon a contract. Questions involving negligence arise only in actions in tort; and where the claim is made for injuries caused by the negligence of the defendant he may retort by a defence of the contributory negligence of the plaintiff. In an action upon a contract, however, no such conditions exist. The plaintiff claims damages upon the contract, as in this case upon a contract of indemnity against accidents, and the defendant cannot be heard to say
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that the plaintiff contributed by his negligence to cause the accident. It follows that the rules and cases relating to negligence cannot be invoked to aid the defendant herein. This position is fully sustained by the authorities. Schneider v. Provident Life Ins. Co., 24 Wis. 28 ; s. c., 1 Am. Rep., 157 . This was an action upon policy of accident insurance. Deceased attempted to get on a train of cars while in slow motion, and fell under them and was killed. The policy contained a clause that the company would not be liable for any injury happening to the assured by reason of his “willfully and wantonly exposing himself to any unnecessary danger or peril.” Plaintiff was nonsuited on the ground that the case fell within this clause, and appealed. It was claimed that, inasmuch as the negligence of the deceased contributed to produce the injury the death was not caused by an accident, within the meaning of the policy. Payne, J., said: “ I cannot assent to this proposition. It would establish a limitation to the meaning of the word £ accident,’ which has never been established, either in law or common understanding. A very large proportion of these events which are usually called accidents happen through some carelessness of the party injured which contributes to produce them. Thus men are injured by the careless use of fire-arms, of explosive substances, of machinery, the careless management of horses, and in a thousand ways where it can readily be seen afterward that a little care on their part would have prevented it. Yet such injuries, having been unexpected, and not caused intentionally or by design, are always called accidents and properly so. * * * An accident is defined as an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause or is an unusual effect of a known cause, and, therefore, not expected. An accident may happen from an unknown cause;
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but it is not essential that the cause should be unknown. It may be an unusual result of a known cause and, therefore, unexpected to the party. And such was the case here, conceding that the negligence of the deceased was the cause of the accident. It is true that accidents often happen from such kinds of negligence; but still it is equally true that they are not the usual result. If they were, people would cease to be guilty of such negligence. But cases in which accidents occur are very rare in comparison with the number in which there is the same negligence without an accident. * * * So there are, undoubtedly, thousands of persons who get on and off from cars in motion without accident where one is injured; and therefore when an injury occurs it is an unusual result and unexpected, and strictly an accident.” After quoting an English case (Trew v. Railway, etc., Assurance Co., 6 Hurl. & Nor. 839) where the question being whether drowning was a death by external violence, the court charged the jury that deceased “ died from the action of water causing asphyxia ; that is, a death from external violence within the meaning of this policy, whether he swam to a distance and had not strength enough to regain the shore, or on going into the water got out of his depth.” Judge Payne proceeded : “ Now either of these facts would raise as strong an inference of negligence as an attempt to get upon cars in slow motion. Yet the court said that, although the drowning was occasioned by either one of them it would have been an accidental death within the meaning of the policy, and the plaintiff entitled to recover. I cannot conceive that it would have made such a remark, except upon the assumption that the question whether the injured party was guilty of negligence contributing to the accident does not arise at all in this class of cases. I think that is the true conclusion, both upon principle and authority, so far as
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there is any upon the subject; and the only questions are, first, whether the death or injury was occasioned by an accident within the general meaning of the policy, and, if so, whether it was within any of the exceptions. “ This conclusion is also very strongly supported by that provision of the policy under which the plaintiff was nonsuited. That necessarily implies that any degree of negligence falling short of £ willful and wanton exposure to unnecessary danger ’ would not prevent a recovery. Such a provision would be entirely superfluous and unmeaning in such a contract, if the observance of due care and skill on the part of the „ assured constituted an element to his right of action, as it does in actions for injuries occasioned by the. negligence of the defendant.” Judgment of nonsuit reversed. Burkhard v. Travelers Ins. Co., 102 Penn. St. 262 , where Mercur, Ch. J., said: “ The present is not like a case between a- passenger and a railway company, in which the company may be exempt from liability for damages arising from negligence of the passenger, not voluntary.” See also, Chamlin v. Railway Pass. Assur. Co., 6 Lans. 71 ; Providence Life Ins. Co. v. Martin, 32 Md. 310 ; Freeman v. Travelers’ Ins. Co., 144 Mass. 572 . It has been directly held by our highest courts that contracts of insurance cover losses occasioned by the negligence of the insured. Phoenix Ins. Co. v. Erie Transportation Company, 117 U. S. 312 , a case which has been several times affirmed by the same court, the last occasion being in the California Ins. Co. v. Union Compress Co., 133 U. S. 387 . The same principle was announced in Burkhard v. Travelers’ Ins. Co., supra.; Cornish v. Accident Co., 23 Q. B. Div. 453.
II. Insurance contracts must be construed against the insurance companies and in favor of the insured. In Cotton v. Fidelity and Casualty Co., 41 Fed. Rep. 506 , it was held that: “ In cases of doubt as to the
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proper construction of the contract the conditions for forfeiture must be construed strictly against the company and liberally in favor of the assured.” And this is so, for the reason that these conditions have the effect, if enforced, to defeat the “ very object of the contract.” He speaks of this as one of the “ established rules of a general character.” To same effect. Thompson v. Phoenix Ins. Co., 136 U. S. 287 , 297 ; National Bank v. Insurance Co., 95 Ib. 673, 678. Policies of accident insurance are intended to furnish indemnity against accidents, and their language is to be construed with reference to that purpose. In-case of doubt or uncertainty in the terms of the policy the construction should be liberal in favor of the assured. Healy v. Mutual Acc. Assn., 31 Cent. L. J. 419 (Illinois Supreme Ct.) Following. Paul v. Travelers’ Ins. Co., 112 N. Y. 472 ; Kratzenstein v. Western Assurance Co., 5 L. R. A. 799 , and cases cited; Darrow v. Family Fund Society, 6 Ib. 495, and cases cited.
III. The deceased did not “ voluntarily expose himself to unnecessary danger,” nor fail to use “ due diligence.” (a) The words “ voluntary exposure to unnecessary danger,” as found in the contract, were selected for some purpose. It is submitted that upon their face—by the ordinary meaning of the words and of the phrase—all accidents which do not involve an exercise of the will as to the exposure are not included in the exception. The exercise of the will requires the exercise of the reasoning powers ; and the operation must, of necessity, take some time for consideration, varying according to the rapidity of the mental process of the individual. An act cannot be said to be a “ voluntary exposure ” which is done at a moment’s notice and under the belief that the party is already in imminent danger of losing his life; neither can an act constitute a “ voluntary exposure ” which is not the result of some deliberation ;
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and still less one which is done in a mental panic. The only volition which the insured could have used at the time of the accident was the will to save his life if he could. This position is amply sustained by the decisions. Marx v. Travelers’ Ins. Co., 39 Fed. Rep. 321 ; Burkhard v. Travelers’ Ins. Co., supra. And see quotation from Schneider v. Provident Life Ins. Co., ‘under point I., supra. (6) Being rightfully where be was, Mr. Jensen became confused by the warnings of the company’s employees, one of whom was behind and the other before him. He was thus informed of imminent danger, but seeing none, and being unable to see any from where he was at that time, and having no time to deliberate, he obeyed the instinct of self-preservation by seeking the nearest place of safety, the station platform. When he started for it he was already, as he was led to think from the warnings, in imminent danger. His mind was occupied with the one object of saving his life. The presumption is in favor of his desire to avoid danger. Under such circumstances he was undoubtedly excused from the necessity of looking for an approaching train, even supposing that it was a physical possibility that he could have seen it while hastening across the second track from the platform (which, we submit, the evidence fails to show), and supposing that the necessary halt in his quickened speed would have enabled him to avoid the express train going at a speed of forty or fifty miles an hour. It would require an exceptionally cool head to stop, under such circumstances, and consider rules of law or craftily worded clauses in a policy of insurance upon which the party relied for the relief of his widow and children in the event of his death by accident. Any prudent man would have taken the same course pursued by Jensen. Surely here was no “failure to exercise due diligence.” (c) Jensen, under the circumstances, could not be held to the strict rule of
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looking both ways before crossing railroad tracks. Parsons v. N. Y. C. & H. R. R. Co., 113 N. Y. 364 .
IV. From the facts this case was clearly one for the jury, (a) What is “ voluntary exposure to unnecessary danger ” is the question of fact for the jury. Burkhard v. Travelers’ Ins. Co., supra; Cotton v. Fidelity and Casualty Co., supra; Travelers’ Ins. Co. v. Seaver, 19 Wall. 531 ; s. c., 86 Sup. Ct. 544 , may also be consulted. (6) What is “ due diligence” is a question of fact for the jury. Stackus v. N. Y. C. & H. R. R. Co., 79 N. Y. 464 ; Kellogg v. N. Y. C. & H. R. R. Co., 79 Ib. 76. (c) How far obedience to the instinct of self-preservation from a visible danger would excuse failure to look for another danger is a question for the jury. McCann v. Sixth Ave. R. Co., 117 N. Y. 505 ; s. c., 213 Am. & Eng. R. R. Cas., 297; Clark v. N. Y. L. E. & W. R. Co., 40 Hun, 605 ; affirmed, 113 N. Y. 670 . (d) From the facts this case would have been clearly one for the jury even had it embraced the question of contributory negligence. Stackus v. N. Y. C. & H. R. R. Co., supra; Sherry v. Ñ. Y. C. & H. R. R. Co., 104 N. Y 652 .
V. The burden of proof rested on the defendant to show that the death of the insured was within the exceptions of the policy. Freeman v. Travelers’ Ins. Co., 144 Mass. 572 . In this case the appellate court, per Field, J., said : “ The court [below] refused to rule that there was not sufficient evidence to warrant the jury in finding that deceased used ‘ due diligence,’ and to this the defendant excepted. It is evident that this refusal, if erroneous, has not harmed the defendant because the burden of proof was upon it.” Murray v. N. Y. Life Ins. Co., 85 N. Y. 240 .
VI. Even had deceased been violating a rule of a company, such violation would not prevent recovery, unless it was shown that he knew of the rule and
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that the rule was in force. Defendant failed entirely to show that Jensen violated any rule of the railroad company in taking the course he took to reach the station, or in anything which he did after entering upon that course, but even a violation of such rules will not prevent a recovery. In the case of Marx v. Travelers’ Ins. Co., 37 Fed. Rep. 321 , the court said : “ If, however, it shall be conceded that the railroad company had at some time prior to the death of Marx adopted a rule forbidding passengers to ride on the platform of a car, and that such rule was within the general condition of the policy referring to rules of a corporation, it was not then in force. The testimony of the trainmen was to the effect that it was not at all observed. All passengers on the road who were so inclined, and often by the invitation of the trainmen, rode .on the platforms of' the cars as freely and as commonly as elsewhere. Under such circumstances it cannot be said that there was any rule of the railroad company as to riding on the platform. ***** An insurance company offering indemnity for injury or death in case of accident, as to its policyholders, is not at all in position of a carrier for hire as to its passengers. The latter is engaged in a special service of peculiar danger, as to which some rules of conduct on the part of its patrons are highly necessary. The former assumes a guardianship of its patrons in respect to casualties of life which beset men everywhere, and as to which it is not practicable to impose limitations which shall be constantly borne in mind by the insured. Will any one say on sea and land, at home and abroad, a policyholder must constantly consider whether he is within all the rules of all the corporations, public and private, which he may in any way encounter ? Whatever the answer may be to any such question, it is plain enough that a rule of a corporation, within the meaning of this policy, must be one which is
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known to the policyholder, and of force at the time of the alleged violation. The evidence at the trial did not establish this fact, and the policy cannot be avoided on the ground that deceased was not observing its terms at the time of the accident. The motion for new trial will be denied.” There is no proof whatever tending to show that the railroad company had ever made or enforced any rule relating to the crossing of its yard by pedestrians; on the contrary the testimony as to the actual use of the yard by the general public in large numbers for a long time as a free passageway to and from the station, without protest or warning from the railroad company is full and convincing. Defendant’s witnesses were quite as positive on these points as were plaintiff’s.
VII. Standing or walking on the roadbed of a railroad company does not mean crossing the tracks of a railroad. Burkhard v. Travelers’ Ins. Co., 102 Penn. St. 262 .

The plaintiff sues as the assignee of a policy of insurance made by defendants insuring one Jensen, the assignor, “ against bodily injuries effected through external, violent and accidental means.”

For a reversal it is urged that the testimony incontrovertibly proved that Jensen’s death resulted from his own negligence. The policy provided that “ the member is requested to use all due diligence for personal protection.”

The death of Jensen was caused by his being run down by a steam locomotive and its train. The train was moving upon a track, close to the platform of a station. This track was designated on the trial as No 1. South of that track, at a short distance from it, and about parallel to it, was another track called No. 2, and again another track, parallel, desig

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nated as No. 3. And still to the south were several other tracks.

It may be assumed that Jensen approached the place, from the outside of all these tracks, from the south. Whether it was a negligent act to approach in this way and to cross until he reached track No. 3, is not material in this case, for the testimony shows that, in fact, he was in no danger from the approaching train until he reached track No. 3, as the jury might find.

The jury iñight find under the evidence, that when he reached track No. 3, he could not see the approaching train if he had looked, as there were cars standing upon that track. If he proceeded to track No. 2, and crossed it without looking for a train, and thereR were no other facts for a jury to find whether he was excusable for not looking and for going on, the court perhaps might hold that his negligence caused the accident in part. But there were other occurrences which made up the circumstances in view of which it was to be determined whether the deceased was negligent.

As he was upon track No. 3, Downey, an employee of the railroad, as he was on the platform,, saw Jensen coming towards the platform. The train that afterwards struck Jensen was coming towards the platform at great speed, and Downey called out in a loud tone, “ look out for the express,” Jensen was then thirty feet away and might have heard. Simultaneously another employee shouted to Jensen from one side. It might have been found that also another em-. ployee was then calling to Jensen from behind him.' Forthwith Jensen, who had been walking rapidly or was upon a half trot, took a still faster pace, crossed track No. 2, and, as he was crossing the next track, was struck.

The jury, in finding what course would be taken by a prudent man, would be obliged to ascertain what

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would be the effect upon such a man of the calls to him, under the circumstances, and whether their meaning to him would be to stop where he was or to proceed at a fast rate, and that then he would be safer. It is to be noticed that Jensen was not told to stop; that the directions to him may have been confusing, as some came from one side of him and others, the jury might find, came from a track over which he had passed. On the whole, a jury might believe that a man of ordinary prudence and apprehension would be led to believe that it was a safe course to hurry and get to the platform as quickly as he could. It was for the jury to find whether, in taking that course, it was imprudent not to stop at track No. 2, and look for the train.

There was sufficient testimony to call for a verdict of the jury on the question of whether the death resulted from the negligence of the insured. By the policy the company were not to be liable if the death resulted “ from voluntary exposure to unnecessary danger.” The appellant argues that the testimony disclosed a breach of this condition by the deceased. At this point attention will be given only to the term voluntary. If there was not a voluntary exposure, there was not a breach. The word, of course, in some way refers to the action of the will. Used as it is in the policy by an insurance company to be understood by men of ordinary information and intelligence, it does not involve the opposing views of philosophers as to free will or determination. But by all it is considered that the will acts from motives springing from things external to the will, and that such motives have an influence more or less controlling upon the will and tending to induce. it to act in a certain way.

In common apprehension, in respect to the ordinary transactions of life, if the external circumstances would have such a controlling influence upon a man of ordi

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nary prudence and intelligence, that he would take a certain course, that course would not be considered voluntary on his part. His course would not be freely taken. It would be controlled by external circumstances.

In this case, it was a question of fact for the jury as to the extent to which Jensen was influenced or controlled by the external circumstances. And the jury would be bound to find that his act was not voluntary if it was such as a man of ordinary prudence would be induced to do by the circumstances.

It is further maintained for the appellant that the injury was not “ accidental.” The meaning of this word, however, seems to be, not brought about by the purpose or intention of the insured. This was at least for the jury to pass upon.

■ The policy excepts the hazard “ of standing or walking on the roadbed or bridge of any railway.” This does not include such a crossing of the track as the deceased made. To stand or to walk on a roadbed implies some sensible duration of the act, and does not describe a mere crossing made for a justifiable purpose, such as reaching the station. Common language distinguishes between standing, walking, and crossing.

On the trial the following questions were asked and answered, under exception by defendants. Q. Has it been the custom, to your knowledge, for people to reach the station in Stanford by other routes than going by the regular roadway ? Q. Do you know whether there was a general custom at this time for people to cross those tracks from Collender’s billiard factory to the station ? These questions were pro-, perly allowed. They tended to draw out matter relevant to the defence in the answer, under a clause of the policy that Jensen was killed “ while, or in consequence of, violating the law or the rules of a company, etc.” This supposed violation was crossing the tracks.

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It was some evidence of the rule or regulations of the company that the tracks had been used for crossing by people generally.

The court did not charge erroneously “ that if the jury find that plaintiff’s assignor was passing the crossing in question upon an express or implied invitation or inducement of the railroad company, or by its permission he was rightfully there.” It is apparent from the rest of the charge that this meant, and was understood to mean, rightfully, as regarded the railroad company. It was involved in the facts to be passed upon by the jury to consider whether Jensen was a trespasser, among other things, as bearing upon his conduct.

There was an exception to the charge that plaintiff’s assignor, in crossing the tracks when he did, was not a trespasser, and the plaintiff has a right to recover if the injury complained of was not caused by want of' ordinary care. The evidence established the fact that Jensen was not a trespasser. The remainder of this part of the charge, if considered with the rest of the charge, was not injurious to the appellant, even if it be, when taken by itself, not correct.

The court was correct in charging, that to establish the defence that Jensen met his death “ by voluntary exposure to unnecessary danger the jury must find that the act of so exposing himself was known or ought to have been known to him, and that his crossing the track was done voluntarily with the full knowledge of the danger.” There seems to be some word inadvertently omitted from the charge as printr ed in the case. The charge means, that to sustain the defence the deceased must have known or ought to have known the danger, and that his act was voluntary and with the knowledge of the danger that he had or ought to have had. The deceased did not voluntarily expose himself to danger if he did not

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know, or was not bound to know, the existence of that danger.

The court was asked to charge, that if Jensen heedlessly and unnecessarily exposed himself to danger of injury, the plaintiff could not recover. The court was not called upon to charge in these words. It had held, for the purpose of the charge, that the act of Jensen was voluntary, and had explained that to be voluntary exposure, Jensen must know or should have known that the danger was present.

The court was right in refusing to charge tha.t Jensen was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have used under the sa,me circumstances. -

Judgment and order affirmed, with costs.

Cases cited