83 N.Y.S. 238 | N.Y. App. Div. | 1903
The facts are not in dispute, and both parties having moved for the direction of a verdict, and the defendant not having asked to go to the jury upon any question of fact, the plaintiff is entitled to have the evidence construed most favorably to her, and to any inference which may be legitimately drawn therefrom which tends to support the verdict in her favor.
In Thompson v. Simpson (128 N. Y. 270) the head note, we think, states the correct rule as follows : “ The effect of a, request by both parties upon trial of an action for a direction of a verdict in his favor is to clothe the court-with the functions of the jury; if the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands, as would the finding of a jury for the same party, in the absence of any direction, and the review, upon appeal to this court, is governed by the same rules -as apply in cases of verdicts rendered without direction; all controverted and inferable facts will be deemed conclusively established in favor of the party for whom the verdict was directed.” To the same effect see: Adams v. Roscoe Lumber Co. (159 N. Y. 176); Smith v. Weston (Id. 194); Westervelt v. Phelps (171 id. 212).
As appears by the uncontradicted evidence, the insured, who was an experienced bicycle rider, started from his home in the city of Rochester at about three-thirty o’clock on the afternoon of August 26,1901, being then apparently in his usual health, to take a ride on his bicycle. He continued to ride, going over some “ rather rough” road, until five o’clock, when he reached his brother’s store, where he was employed. His clothing was dusty, and “ he was breathing as any one would if they had been on a ride.” The deceased then washed himself and entered upon the performance of his duty in the store, continuing until half-past seven o’clock when he went home on his wheel, arriving there at about a quarter of eight, and had his supper. Soon after he complained of soreness in his abdomen ; went to bed at ten o’clock, and about two o’clock in the morning commenced to suffer great pain in the region of the abdomen. His wife applied or gave him certain remedies to relieve the same, which apparently had that result. He got up the next morning at about six o’clock, the usual hour, when he was again taken with severe pain. A physician was called who found it necessary to administer a hypodermic in order to get him into bed. At midnight following he was taken with vomiting, had a severe chill and the physician was again sent for. The physician found the intestate suffering very severely from pain in the abdomen, and discovered a marked tenderness over the appendix. He diagnosed the trouble as appendicitis and advised
The evidence of the plaintiff tends to prove — and we will assume it to be a fact ■—■ that the appendicitis which resulted in the death of the insured was caused by the bicycle ride which he took on the afternoon of August twenty-sixth. The physicians called as witnesses on behalf of the plaintiff testified that in their opinion this was true, because the “psoas ” muscle, the function of which is to flex the leg upon the body and rotate the leg and thigh upward,' lies in close proximity to the appendix, and in such position that" when brought into play, as by riding a bicycle, it necessarily rubs against the appendix, and there being “ coprolites or concretions ” (hard substances about the size of a bean) in such organ; such rubbing or play of the muscle caused irritation resulting in inflammation, which weakened the walls of the appendix, caused it to rupture, thus permitting the contents of that organ to enter the abdominal cavity, causing appendicitis, septic peritonitis and death.
We can conceive of no theory upon which it can be. said, from the facts disclosed by the evidence, that the death of the insured resulted from “bodily injuries effected * * * through external, violent and accidental means,” within the meaning of the policy. Riding the bicycle was in no sense an accident or accidental ;■ the insured planned for and deliberately entered upon the project, and, so far as appears, it was carried out precisely as intended. He sustained no fall or shock ; came into collision with nothing; he went where he chose; selected his route, his wheel at all times under
The most that can be said in such cases, and in the case at bar, is that the result was accidental, but the means which produced it were not accidental. As we have seen, the evidence wholly fails to show that the deceased did anything which he did not fully intend to do, or that what he did was not done precisely as intended; therefore, the result of such acts, his death, was not produced by “ accidental means.”
.This view of the matter is fully sustained by the authorities cited by defendant’s counsel: Southard v. Railway Passengers Assurance Co. (34 Conn. 574); McCarthy v. Travelers' Ins. Co. (8 Biss. 362); Ætna Life Ins. Co. v. Dorney (48 Ohio Law Bul. 303); Feder v. Iowa S. T. M. A. (107 Iowa, 538).
• The cases cited by the learned counsel for the plaintiff are not in conflict with the principle for which the defendant contends.
In Paul v. Travelers' Ins. Co. (45 Hun, 313 ; affd., 112 N. Y. 472) the insured accidentally inhaled illuminating gas, and death resulted.
. In Tucker v. Mutual Benefit Life Co. (50 Hun, 50) the insured went with others to a disabled steamer on Lake Ontario, to aid in rescuing the crew. While returning from the wreck the boat was accidentally capsized by a heavy sea and the insured was drowned. When his body was found two days later a bruise was discovered across his left temple, and, under those circumstances, it was properly' held that it was for the jury to say whether death resulted from “bodily injuries through external, violent and accidental means.” In fact the evidence, in that case was such as to almost conclusively establish the fact.
In Larkin v. Interstate Casualty Co. (43 App. Div. 365) the only question of fact raised by the evidence was whether the death
In Martin v. Equitable Accident Association (61 Hun, 467) concededly the insured cut his finger accidentally. He died many days later from blood poisoning, and upon all.the evidence in that case the court held that it was a question for the jury to determine whether or not the accident was the cause of death.
In Bailey v. Interstate Casualty Co. (8 App. Div. 127) the insured, a physician, who was. in a weakened condition by 'reason of injuries which he had sustained, was riding in a carriage. He stopped and attempted to administer medicine to himself in his leg with a hypodermic needle. While thus engaged the carriage suddenly started, and by reason of such sudden. start he accidentally inserted the needle too deep, and the injury for which he sought to-recover weekly indemnity ensued. The court held that it was. a question for the jury as to whether or not the injury complained of was caused by accidental means.
The foregoing illustrates the principle decided by the many other cases which are cited by plaintiff’s counsel. In each of those cases the facts established that the thing or acts which caused the injury or death were accidental, were not intended, or the evidence was of such a character as to make that question one of fact.
Our attention has not been called to any case which holds, and we-have- failed to discover any authority for the proposition, that a result- which is produced by means, all of which and every detail of which was intended, Can bé said to have been produced by accidental means, simply because the result which followed the employment of such means, exactly in the manner intended, was different from the result anticipated. In order that the plaintiff may succeed in the case at bar, it is necessary that we. should assent to that exact, proposition. We think that is not the proper construction Or-true meaning of the language of the policy in suit.
■ Having reached the conclusion indicated, which goes to the’merits of the plaintiff’s- alleged cause of action, we deem it. unnecessary to-consider- any of the Other questions presented, by the appeal.
Adams, P. J., Williams and Hiscock, JJ., concurred; Spring, J., not sitting.
Defendant’s exceptions sustained and motion for new trial granted, with costs to the defendant to abide the event.