108 Mo. App. 169 | Mo. Ct. App. | 1904
— Respondent brought this action upon a general accident policy of insurance issued for the principal sum of $2,000 against bodily injuries sustained through external, violent and accidental means, if death should result from such injuries within ninety days, and in event that loss by actual separation at or above the wrist of the left hand should so result within ninety days, the company to pay the assured one-third of the principal sum, above named. The petition setting forth the terms of the contract of insurance, charged that on the twenty-fourth day of June, 1903, while the policy was in full force and effect, as plaintiff was riding on cars in yards of'the Terminal Railroad Association, in the city of St. Louis, he was struck by a semaphore or signal post at the side of the track and knocked from the cars, falling in such a way that he sustained an injury to his left hand, necessitating its amputation above the wrist and concluded with general allegations of notification of accident and of proof of injury, in obedience to the policy.
Defendant answering, admitted the occurrence of the injury, the issuance of the policy and that it was
At the trial, plaintiff produced by defendant as its witness, testified that at time of the catastrophe and for many years preceding he had been employed as a clerk in the shops of the Missouri Pacific Railway at corner of Montrose and Chouteau avenues, south of the railroad tracks entering the city of St. Louis from the west; that on the day of his injury he left his office at five o’clock in the afternoon to proceed to his residence in Kirkwood, in the suburbs of the city, by train from the Union station. He further deposed that he went by the easiest way for him to reach the station
The statements descriptive of the accident • submitted to the defendant over plaintiff’s signature in support of his claim were as follows:
“I was riding east on a terminal freight pull and was just getting down to get off when I was struck by a semaphore pole, left arm badly injured, which was amputated at the hospital the same night.
“I left the office of the Missouri Pacific Railway shops and was on my way to the Union station to get my train for Kirkwood. A terminal pull coming out of Frisco yards at Twenty-second street came along and I got on to cross the pull so as to get over the tracks next to the Union station, climbed up on a coal car, and as they were going the same way I was, I stayed in the coal car and rode about a block or a little over, and in getting off on the other side from where I got on, I was dragged off by a semaphore pole and my left arm was injured, so that when I was taken to the Missouri Pacific Hospital they amputated it two inches below the elbow or near that. I can not tell exactly how it happened, whether by getting caught in the ladder connected with the semaphore or whether it happened after I fell on the ground. This happened on June 24, 1904, at about 5:15 p. m. Cars were running about three or four miles an hour.”
Defendant also examined a witness, who had been employed in the railroad yards and was familiar with the location from Thirtieth street to the station, and he described their condition, stating that within those limits the Missouri Pacific had about seven tracks, the "Wabash three and the Frisco about five, the Terminal three at Ewing avenue; and at Twenty-second street
At the close of the testimony, the court rejected the imperative instruction asked by defendant that the plaintiff was only entitled to recover the sum of $33.33 and directed the jury to- find for plaintiff in amount of $666.67.
• The question decisive of this case is whether, in the words of the contract of insurance, the injury of plaintiff was caused, directly or indirectly by voluntary exposure to avoidable danger, so that at the time of the disaster the insurance attached only to the extent of one-twentieth of that amount which would have been his measure of indemnity, if similarly injured without such exposure. Plaintiff’s individual testimony, oral and in writing, established beyond dispute that as the shorter route to the Union station plaintiff elected to pass through the railroad yards, through which trains, both freight and passengers, were almost momentarily passing and repassing in opposite directions and by which his passage was likely to be at any time obstructed in lieu of selecting either way safer if less direct, open to him over the public streets of the city; and finding his way blocked he assumed the additional risk of climbing on, over and from an empty freight
As the plaintiff’s individual testimony disclosed facts which absolutely defeat his right of action to the larger sum to which he laid claim, the judgment is reversed and the cause remanded with directions to enter judgment for the amount of $33.33 confessedly due.