146 Mich. 521 | Mich. | 1906
(after stating the facts). That negligence which would defeat a plaintiff in an action for damages on account of the negligence of a defendant finds no place as a defense in the law of insurance against accidents. Such contracts must be shorn of much of their value if ordinary contributory negligence could be interposed as a defense. Thoughtless and inconsiderate acts are some of the very things which these policies are designed to cover. One might easily ascertain whether his gun was loaded before he undertook to clean it. The hunter, in going through the brush, or getting over a fence, or rowing in his boat, should be careful to handle his gun so as to prevent accident. One climbing a ladder should see that the rounds were sound and securely fastened. Ordinary prudence would require these precautions, but hundreds of accidents happen because they are not taken. The term “voluntary exposure to danger” means a realization that an accident will in all probability result, and an injury follow, from the action about to be taken. The danger of injury must be obvious.. That point has been decided in this court in Johnson v. Accident Co., 115 Mich. 86 (40 L. R. A. 440), where we said:
“The term ‘ voluntary exposure to unnecessary danger,’ as used in an accident policy exempting the insurer from liability for injuries caused by such exposure, means a conscious or intentional exposure, involving gross or wanton negligence on the part of the insured.”
This is the well-established.rule. Fidelity & Casualty Co. v. Sittig, 181 Ill. 111 (48 L. R. A. 359); United States Mut. Accident Ass’n v. Hubbell, 56 Ohio St. 516 (40 L. R. A. 453); Rustin v. Insurance Co., 58 Neb. 792
Plaintiff did not anticipate injury from doing what he had done before, and what others have repeatedly done. There was no obvious danger of injury. Granting that he might have stopped, we cannot say that there would not have been as much danger in trying to stop upon a slippery floor as in running against the wall. A jury would be justified in finding that the plaintiff had no anticipation of an accident, and did not realize that there was any danger. Even if he were careless, and might have avoided running against the wall, but, in doing so did not realize any danger, he was entitled to recover. The learned circuit judge was in error in directing a verdict for the defendant.
Judgment reversed, and new trial ordered.
