Majority
The insured was injured by being crushed between two railway box cars (as found by this Court, and also by the Appeal Division which held that the jury's answer, " Don't know," on this point, was perverse), and died as the result. The defendant alleged that at the time of the accident the insured was trying to engineer the movement of a box car, and that, therefore, under the terms of the application and policy above quoted, the plaintiff was not entitled to recover the full amount named in the policy, for which full amount the plaintiff sued.
On the answers by the jury to questions submitted (which are set out in the judgment now reported), judgment was given for the plaintiff, which was affirmed by the Appeal Division.
The defendant appealed to this Court.
Judgment of the Court
C.J.C.-Omitting what is contentious, the following " statement of facts " is taken, practically verbatim, from that given by the appellant in its factum:
" This is an appeal by the defendant from the judgment of the Appeal Division of the Supreme Court of New Brunswick, confirming the judgment of Mr. Justice Byrne and a jury, awarding the plaintiff the sum of Ten Thousand Dollars ($10,000) payable in instalments.
" The action was brought to recover the amount of an accident insurance policy issued by the defendant to Frederick B. Mahoney dated January 4, 1926, and renewed January 4, 1927. The policy was made payable to the plaintiff, Ellen A. Mahoney, a sister of the insured. " On the 17th day of August, 1927, the insured, Frederick B. Mahoney, was accidentally injured by being caught and crushed between two railway cars at Calhoun's Mills, Westmorland County, New Brunswick, and the injuries sustained by him resulted in his death on August 30, 1927.