134 Mo. App. 222 | Mo. Ct. App. | 1908
Respondent, while insured by appellant against accidents, fractured his leg in a leap from a trolley car on a cross-country line in Illinois. A collision appeared to be imminent between the car and a threshing machine drawn by a traction engine, along a highway which intersected the railway, and in his alarm respondent, who was seated insidé the car, went to the platform and jumped off. A collision of slight violence occurred and the passengers who remained in the car were unharmed; in fact no one was hurt but respondent, though the conductor, motorman and some other passengers on the car likewise jumped off. The tibia of respondent’s leg was broken by the force with which he struck the ground. The policy describes certain accidental injuries which, if sustained by the insured, might cause a total loss of time, for which the company would indemnify at the rate of twenty-five dollars a week; and further provided as follows:
“Part III — Double Indemnity.
“If injury as before described is sustained while the insured is (1) riding as a passenger and is in or*225 upon any railway passenger car using steam, cable or electricity as a motive power, or (2) a passenger on board a steam vessel licensed for tbe regular transportation of passengers, or (3) a passenger in an elevator provided for passenger service only, or (4) in a burning building, as owner, guest or tenant, tbe company will pay double tbe indemnity otherwise payable under Parts I or II of this policy.
“Double indemnity (Part III) shall not be payable for any loss resulting from injury sustained while getting on or off, or being on tbe step or steps of any railway or street railway car.”
Respondent was disabled for more than eighteen weeks and appellant offered him single indemnity for the period of the disability, but be demanded double indemnity, contending he was entitled to it under the paragraph of the contract we have quoted. The company contends be was only entitled to single indemnity because bis hurt was received while be was not riding as a passenger in or on the car, but while be was getting off. It being agreed respondent was injured as the result of his leap from the car, induced by a perilous situation, the court below held be was in or on the car in the meaning of the policy when hurt and, further that the accident did not come within the exception provided in the paragraph for double indemnity, to wit: if an injury happened while the insured was getting off or on or was on the steps of a car. Clearly respondent Avas not either actually in or upon the car in a physical sense Avhen he was hurt. He bad left the car in a leap be considered necessary to escape barm, and broke bis leg Avhen be struck the ground. Clearly, too, the injury Avas sustained while he was getting off the car, or rather, after be was off. The argument is that in framing the contract for insurance with those provisos, the parties did not intend to excuse the corn-
The judgment is reversed and the cause remanded with directions to the court to set aside the judgment for double indemnity and enter judgment for single.