45 Neb. 249 | Neb. | 1895
This was a suit on a policy of accident insurance, and resulted in a judgment in favor of the plaintiff, from which the defendant insurance company prosecutes error.
The policy sued upon insured Snowden against loss of time, not exceeding twenty-six consecutive weeks, resulting from bodily injuries, effected through external, violent, and accidental means, with a provision that if the loss of one entire hand or foot should result from such injuries alone within ninety days, the insurer would pay one-third of the principal sum, such sum being $5,000. The policy designated Snowden’s classification as “preferred (being a cattle dealer or broker and shipper, not tender or drover, not on ranch or farm, by occupation).” The insuring clause of the policy began, “ does hereby insure, subject to conditions on back hereof.” On the back of the policy, under the heading “Agreements and conditions under which this policy is issued and accepted,” was the following:
“ 4. This insurance does not cover * * * accident, nor death, nor loss of limb or of sight, nor disability resulting wholly or partly, directly or indirectly, from any*253 of the following causes, or while so engaged or affected:'- * * * Violating law; violating rules of a corporation; * * * voluntary exposure to unnecessary danger; entering or trying to enter or leave a moving conveyance using steam as a motive power; riding in or on any such conveyance not provided for the transportation of passengers; walking or being on a railway bridge or roadbed. (Railway employes excepted.)”
The answer of the insurance company alleged that the accident had been incurred under circumstances within the exceptions which we have quoted. The reply was a general denial.
The evidence tended to show that the insured was on his way from Cushing to Omaha, accompanying twelve carloads of cattle belonging to him, which he was bringing to market. The train was a long one and the cars containing his cattle were near the front end of the train. A stop was made for the purpose of taking water, at Seward, late' on Sunday night. Snowden took advantage of this stop to alight from the caboose and go forward to examine his stock. He carried with him what is designated a “prod-pole,” about five feet long and an inch and a half in diameter. He found a steer off its feet in a car about the fourth or fifth from the front of the train, and was endeavoring to get the steer on its feet by means of the prod-pole when the engine gave the signal to start. Snowden climbed upon the car. The train moved forward a very short distance and stopped again. Snowden • dismounted and renewed his effort to get the steer on its feet. While so engaged another signal to start was given. Here the testimony becomes conflicting. Snowden testifies that he at once proceeded to climb upon the car by means of the ladder or' steps on the side thereof, and that when he had almost reached the top of the car, the sudden movement of the train in starting wrenched him from the ladder and threw' him upon the track, the wheels passing ever one hand in
“1. Before the plaintiff can recover he must establish his case by a preponderance of evidence.
“2. If the plaintiff recover, he can only recover one third of five thousand dollars, and interest thereon at seven per cent from the time he notified the company of his injury, if he did so notify them.
“3. The plaintiff as a shipper had a right to attend the cattle which were being shipped, and if he was injured while engaged in so caring for the cattle, his loss is within the risk taken by the insurance company; provided he acted with the prudence of a man of ordinary intelligence and prudence, placed in like circumstances.”
The defendant requested and the court refused to give, among others, an instruction to the effect that if Snowden received the injury while he was voluntarily exposing himself to unnecessary danger, he could not recover; another to the effect that if he received the injury while he was entering or getting upon, or trying to enter or get upon, a moving conveyance, using steam as a motive power, he could not recover; and still another, to the effect that if he received the injury while riding in or upon a moving conveyance using steam as a motive power, and which was not provided for the transportation of passengers, he could not recover. We entertain no doubt that it was entirely eom.petent for the parties to contract for insurance not extending to the excepted risks. The company might have
There are several assignments of error which we have not noticed, and which, in the present condition of the record, we do not deem it necessary to consider. For the errors already referred to the judgment must be reversed.
Reversed and remanded.