65 W. Va. 283 | W. Va. | 1909
On the trial of an action upon a policy of insurance against death resulting from bodily injuries caused by external, violent and accidental means, a verdict was rendered by the jury in favor off the beneficiary for the amount to be paid by the insurer upon the happening of such contingency. That amount was one thousand dollars. The verdict was set aside as contrary to law and the evidence and a new trial was awarded. To that action of the court below, this writ of error is prosecuted.
To justify the aforesaid action of the court, it must be found that errors were committed at the trial to the prejudice of' the defendant or that the verdict was contrary to law and the evidence. Robinson v. Kistler, 62 W. Va. 489. The defendant does
. The real substance of the evidence is as follows: The insured was found, some time between 9 :30 and 10:30 o’clock at night, badly injured, at the foot of a high wall where 16th Street, in the City of Huntington, passes under the tracks of the Chesapeake and Ohio Railway. He was unconscious at the time, and died a few hours later in a hospital, never having regained consciousness. Just before he was found injured, insured was seen lying on a bench by the side of the telegraph office, which is situated at the top of this wall, very near its edge, and just above' the point at which he was found. The telegraph office is near the railway tracks, and on a level therewith, it seems. The wall is one necessary to the lowering of the street so as to ' make the street cross the railroad under grade. At the telegraph office it was not guarded 'by a railing. The night on which the injury occurred was dark, and the electric light at the intersection of 16th Street and the railroad was not burning. The insured was an extra locomotive fireman of the railway company. His run was from Russell, Kentucky, to Handley, West "Virginia. He frequently stajred with his brother, the beneficiary of the policy, who resided in Huntington; but he had not been there for several days. The road foreman of engines testifies that men making such run out of Russell but living in Huntington, frequently board trains at the telegraph office above designated to deadhead to Russell. There is no direct evidence, however, that the insured was ever at this telegraph office before. The yard-clerk, whose duties were at that place and whose office was located there, when asked if he had ever seen the insured come there to take a train, replied: “I don’t know whether I ever saw him; no sir.” Ho one knows just how the injured man came to fall from the wall. A hostler who was attending some engines there saw the insured lying on the bench as he passed into the office. The insured was still tying there when this hostler came out of the office and walked to the upper end of the railway bridge over the street. When he reached that part of the bridge, he heard an unusual noise. He at once returned toward the office, and noticed that the insured was not on the bench. An
The policy provided that it did not cover any injury occasioned wholly or partty, directly or indirectly, by many things, among them being intoxication and voluntary or negligent exposure to unnecessary danger. And it also provided no insurance against injury received while the insured was on a railroad bridge or roadbed, except as to railway employes while on duty incident to their occupation.
• The insurance company defended under the general issue and
Thus, we: see, the issues submitted to the jury were plain. The plaintiff sought to establish injury, from which death resulted to the insured, by violent and accidental means. The defense sought to establish intoxication, voluntary or negligent exposure to unnecessary danger, or that the insured was on a railroad bridge or roadbed, at the time of the injury. The sufficiency of plaintiffs evidence was not challenged by defendant at the trial. The defendant rested the case with the jury, relying upon instructions given in its behalf, as we have noted. Plaintiff asked no instructions, relying solely on his evidence. But after the verdict had been found against defendant, on motion for a new trial, and now upon this writ of error to the order setting aside that verdict, much is argued as to the insufficiency of the case made to sustain plaintiff's issues. It is now insisted that it is not proved that the insured met his death by accidental means; that he may have committed suicide, or that another may have pushed him over the wall. The testimony on this point was sufficient to go to the jury. As we'have seen, the insured, alone, was lying on the bench when the hostler, who
Is there in the record evidence of intoxication of the insured at the time of the injury? The mere fact that he had been drunk before does not prove that he was drunk at the time of the injury. Drunkenness at that time must be established if it is to avail as a defense. The only testimony that he was .intoxicated near the time of the accident is that of the policeman, and that witness cannot definitely fix the time so as to bring it near enough the time of the accident to justify the jury in believing that he was drunk when the accident happened. The jury saw this witness, heard his cross-examination, and had a right to
The claim of the defendant that the insured was on the bridge or roadbed of the railway company is in nowise sustained. And at the time of asking instructions to the jury, this claim seems to have been abandoned by the defendant. There is not' the slightest evidence to sanction defense on this ground. Insured was not on the roadbed or bridge of the railway. Besides, as to a clause exempting from liability for injury to insured while on such roadbed or bridge, it is wisely said that “the manifest intention is to exempt from responsibility for damages caused by collision with moving trains thereon.” Burkhard v. Insurance Co., 102 Pa. St. 262.
Was there a voluntary or negligent exposure to unnecessary danger on the part of insured? It is insisted that the injury was caused by his negligence, and that the insurer is, therefore, not liable. In this case, the clause of the policy conditioning recovery by the words “voluntary or negligent exposure to unnecessary danger” is at least different in phraseology from that usually found in accident policies and met with in judicial interpretation. The most usual expression passed upon in the reported cases is “voluntary exposure to unnecessary danger.” A clause similar to the one last mentioned was under consideration by this Court in Diddle v. Continental Casualty Company,
Now, does the use of the word “negligent" in the clause demand fropi the insured a greater degree of prudence and care than that enunciated in these authorities? The rule is now firmly established that limitations on the liability of the company are construed most strongly against the insurer or liberally in favor of the insured. Mblack on Insurance, § 367; Fidelity & Casually Co. v. Chambers, 93 Va. 138. Chancellor Kent says that the true principle of sound ethics is to give a contract the sense in Hiich the person making the promise believes the other party ro have accepted it, and a just sense should be exercised in so interpreting it as to give due and fair effect to its provisions. 2 Kent Com. 555. This just principle of interpretation applies fittingly to contracts of accident insurance. Are we to say that the use of the word “negligent," as aforesaid, is to exempt the insurer from all liability because perchance some slight negligence of the insured has contributed to accidental injury? To do so would result in the destruction of the real purpose of indemnity of this character. It has been pertinently said: “A very large proportion of those events which are universally 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 managemeint of horses, and in a thousand ways, where it can readily be seen aftewards that a little greater care on their part would have prevented it. * * * * 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 fin comparison with the number in which there is the same negligence without any accident. A man draws his loaded grin toward him by the muzzle — the servant fills the lighted lamp with kerosene — a hundred times without injury. The next time the gun is discharged, and the lamp explodes. The result was unusual, and therefore as unexpected as it had been in all the previous instances. 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
The evidence does not justify the conclusion, as a matter of law, that the insured voluntarily exposed himself to unnecessary danger, within the meaning of those terms as applied to cases of this character. Whether he did so expose himself, therefore, was a proper question for the determination of the jury from all the facts and reasonable inferences in that regard. Nor can it be justly said that the jury’s evident finding that
• These observations upon the evidence are sufficient, we think, to show the insufficiency of the evidence relied upon to_ sustain exemption because of voluntary exposure to unnecessary danger. By the sound inferences to be- drawn from all the facts and circumstances] it is not established that there was exposure to danger of the substantial kind that will excuse from liability, or to any danger that was obvious to insured. In Travellers’. Ins. Co. v. Clark, supra, it is held: “The words Voluntary exposure to unnecessary, danger/ when employed in a contract of life and accident insurance, relate to dangers of a substantial character which the insured recognizes and to which he, nevertheless, consciously and purposely exposes himself, intending at the time to assume the risk of the danger.”
Ujpon the evidence adduced in the case, the issues were properly to be disposed of by the jury. The verdict is not against the decided weight and preponderance of the evidence. The case was fairly submitted to a jury. A verdict was fairly rendered by that jury. jSTo manifest wrong or injustice appears. The verdict is not unwarranted by the evidence. Under such circumstances, what justification can there be for disturbing the verdict and denying to plaintiff the result thus fairly gained? There is none. The action of the circuit court in setting aside’the verdict and awarding a new trial is contrary to well established law. Coalmer v. Barrett, 61 W. Va. 237; Smith v. Railway Co., 48 W. Va. 69; Young v. Railroad Co., 44 W. Va. 218; Miller v. Insurance Co., 12 W. Va. 116; and many other cases.
The action of the trial court in setting aside the verdict and awarding a new trial is erroneous. It is, therefore, reversed. -This Court now proceeding to render such- judgment as the
Reversed.