133 Iowa 224 | Iowa | 1907
The defendant, as its name implies, is a corporation doing an accident insurance business. The plaintiff, a real estate broker and a policy holder in said association, met with an accident in June, 1904, resulting in a total permanent disability. He made claim for the sum of $1,250, the full sum provided in the policy to be paid in case of total disability; and, payment being refused, he brought this action to recover.
Several defenses are pleaded, but the one upon which reliance is principally placed is based on a provision of the policy, in substance, that the injuries insured against shall not include those received while the assured is on the roadbed of any railroad company, except while crossing at a public highway, but that in such case the liability of the association shall not exceed $125 for total disability. The court refused requests for instructions presented by defendant limiting the right of recovery on the policy to the sum of $125, and submitted the question to the jury as to whether at the time of the accident plaintiff was on the roadbed of a railroad
Taking this to be the situation, was plaintiff on the roadbed of a railroad company within the meaning of that expression as contained in the policy? At first blush it
But when all this is said — and perhaps we have given more time to the phase of the subject than necessary- — it remains to be said that it is neither necessary or proper to apply the definition of a roadbed in its strict sense to the, term as it is used in .an accident insurance policy. In such connection “ the phrase ‘ walking or being on a railway bridge or roadbed ’ is not to be construed with absolute literalness.” Accident Co. v. Wagley, 74 Fed. 457 (20 C. C. A. 588). Ordinarily a railroad track does not of itself present a condition of danger, either hidden or obvious. It becomes dangerous only in connection with its use in the operation of trains thereover. And from this the conclusion follows, as we think, that the exception found in the policy in suit — an exception common to most accident policies — was intended to have force only in the event of an injury connected in its origin with the matter of train operation. Certainly there can be no reason for saying that it was intended to bar a right of recovery if the accident was such in character that it could have been made the basis of a recovery had it occurred elsewhere than on the roadbed of a railroad company. 4 Cooley, Insurance Briefs, 3187, citing Burkhard v. Insurance Co., 102 Pa. 262 (48 Am. Rep. 205) ; Dougherty v. Insurance Co., 154 Pa. 385 (25 Atl. 739). On the contrary, the purpose of the exception was to prohibit the exposure of his pérson by the assured to the dangers to be apprehended from moving engines or cars. “ The condition
Now, as constructed, an embankment forming a roadbed may in fact extend to the limits of the right of way, or it may happen that the ties and rails are laid at the bottom of a cut or on the natural surface of the ground simply made smooth for that purpose. Accepting of the purpose and intention of the policy exception as concluded foregoing, there could be no reason for extending the operation thereof to include all that portion of the constructed bed which is so far removed from the tracks as to preclude danger from a passing train. Thus, in Standard, etc., Co. v. Langston, 60 Ark. 381 (30 S. W. 427), it was held that an exception similar in wording to that found in the policy before us could not be construed “ to include in its meaning the ends of the ties of unusual and extraordinary length, and extending to a place where there can be no possible collision with trains, and. where persons standing or sitting would be beyond the reach of injury from passing trains.” So, in the case of track laid in a cut or in the natural surface, we think it would be not only out of reason, but absurd, to say that- the exception cannot be given application if it shall be made to appear that the assured was standing or walking outside the line marked by the ends of the ties, but not far enough distant to escape injury from a passing train. It
Now, whether appellee was on a roadbed, in the sense of that expression as used in the policy, was, of course, a question of fact for the jury to decide if there was any room for doubt about it. In our view the situation as disclosed by the record left no room for doubt. It will be remembered
Counsel for appellee cite our attention to the case of Meadows v. Insurance Co., 129 Mo. 76 (31 S. W. 578, 50 Am. St. Rep. 427), as announcing doctrine to the contrary. And in a sense this would appear to be so. We cannot undertake to review the opinion in detail. Suffice it to say that there the assured was killed in. the accident. When found, the lower limbs were lying between the main track rails,
Accepting of the case at bar, as made, it is our conclusion that the trial court erred in refusing the- request for instructions, and the judgment must be, and it is, reversed.