Shevlin v. American Mutual Accident Ass'n, 94 Wis. 180

Shevlin v. American Mutual Accident Ass'n

94 Wis. 180 | Wis. | 1896

Marshall, J.

It was error for the court to leave it to the jury to speculate on whether the deceased fell or jumped from the car. In view of the undisputed evidence that deceased and his associate, Swenson, proposed getting off the train at Amherst; that it was agreed between them that if the train did not stop there they would jump off; that the train, instead of slowing up as it approached the station, appeared to them to be increasing in speed, whereupon *183Swenson jumped, and immediately thereafter found the deceased unconscious, lying beside the track,— there is no room for any reasonable inference other than that the deceased jumped from the moving car, and thereby received the injury which caused his death.

If there is anything in the law of negligence • that has been reduced to the degree of certainty requisite to a judicial code it is that, if a person unnecessarily jumps from a moving railway car, and is thereby injured, a recovery for his resulting damages is precluded on the ground of contributory negligence. So held even where the person had reached his destination, and the train had previously stopped, yet not for a reasonable length of time to allow him to alight. Jewell v. C., St. P. & M. R. Co. 54 Wis. 610; Brown v. C., M. & St. P. R. Co. 80 Wis. 162. Such an act is prima, facie evidence of negligence. Lake Shore & M. S. R. Co. v. Bangs, 47 Mich. 470; Cousins v. L. S. & M. S. R. Co. 96 Mich. 386. Clearly, the act of jumping from the top or the side of a rapidly-moving freight car, without any reasonable cause therefor, on a dark night, constitutes more than ordinary negligence; it is an act of gross negligence; an act consistent only with a conscious disregard of personal safety, measuring such conduct by the standard of that of a reasonably prudent person.

It is argued by respondent’s counsel that the general principles of the law of negligence do not apply. Authorities are cited for and against that proposition, but, by a careful examination of them all, it will be seen that to what extent the general principles of the law of negligence apply in this class of cases must be determined by the contract. If such a contract is general, insuring a person against accident occurring by external violence without any exception of the character under consideration, contributory negligence does not constitute a defense to an action on the policy. Champlain v. Railway P. Ass. Co. 6 Lans. 71. *184There are cases, to be sure, which hold that, if an injury is attributable to the insured’s own negligence, then it cannot be said to be accidental. Morel v. Mississippi V. L. Ins. Co. 4 Bush, 535. But the great weight of authority is to the contrary; and this court, in a well-considered case, decided that the question of contributory negligence as a defense must be determined by the terms of the policy. Such is the effect of Schneider v. Provident L. Ins. Co. 24 Wis. 28, upon which respondent confidently relies. The exception in the policy there under consideration was as follows: “No claim shall be made under this policy by the assured for any injury caused by his wilfully and wantonly exposing himself to any unnecessary danger or peril.” The person was injured while stepping from a depot platform onto a passenger car while it was moving no faster than a person could walk. The court held that the words “ wilfully and wantonly exposing himself to unnecessary danger ” mean a greater degree of negligence than a mere failure to exercise ordinary care; hence any degree of negligence falling short of that does not come within the exception; that it could not be said, as a matter of law, from the facts of that case, that the negligence of the assured was of the higher degree. Such is all that was there decided, applicable to this case. The general statement in the headnote, as published, that “ the fact that a person insured against injury or death by accident was guilty of negligence which contributed to an injury received by him, will not prevent a recovery on the policy,” is misleading.

The doctrine of Schneider v. Provident L. Ins. Co. was followed in Keene v. N. E. Mut. Acc. Asso. 161 Mass. 149. The language of the exception in that case was, “Injury caused by voluntary exposure to unnecessary danger.” In Manufacturers’ Acc. Indemnity Co. v. Dorgan, 58 Fed. Rep. 945, where the same language was used, the court held that only cases of gross negligence were within the exception. Many other *185cases to the same effect might be cited, while authority is-not wanting that the exception, where the language is “ voluntary exposure,” etc., etc., is not confined to injuries caused by gross negligence. Duncan v. Preferred Mut. Acc. Asso. 13 N. Y. Supp. 620.

In Tuttle v. Travelers' Ins. Co. 134 Mass. 115, the language of the exception was “exposure to obvious or unnecessary danger.” The court held the provision violated, applying the general principles of the law of negligence. Substantially the same language was used, and received the same construction, in Travelers’ Ins. Co. v. Jones, 80 Ga. 541, and in Smith v. Preferred Mut. Acc. Asso. 104 Mich. 634.

In the light of the foregoing authorities, it does not appear difficult to properly construe the contract of insurance-in this case. It excepts “ any injury resulting in whole or in part from exposure to unnecessary danger.” The word- “ voluntary ”’ does not occur, which led to the construction that the negligence contemplated was a conscious exposure-to danger, to gross negligence, in some of the cases referred to, not necessary here to approve. It does not contain the-words “ wantonly and wilfully,” or any equivalent words,, which led to the decision in Schneider v. Provident L. Ins. Co., supra. The language can hardly be said to admit of two constructions, so as to invoke the application of the rule that the construction should be adopted most favorable to the assured. It plainly includes all cases of exposure to unnecessary danger where such exposure is attributable to negligence on the part of the assured; that is, the exception was intended to hold the insured responsible for the exercise of ordinary care, and to except from the provisions of the policy all cases of injury occurring in whole or in part through a failure to exercise such care. Under such a provision no recovery can be had if the injury is caused by reason of exposure to unnecessary danger, within the general principles of the law of negligence.

*186Under this construction of the policy, no other conclusion can be reached than that the assured came to his death by reason of his exposing himself to unnecessary danger; hence, there being no evidence to support the verdict, the trial judge erred in refusing to set it aside, and grant a new trial.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.