158 N.Y.S. 1014 | N.Y. App. Div. | 1916
It was for the plaintiff to allege and prove that bodily injuries sustained by her husband through accidental means, independently and exclusive of all other causes, resulted in his death. She alleges he was injured December 29, 1914; he died December thirty-first. The defendant denies the injury and contends that death resulted from heart disease and other diseases. A hackman swears that the deceased, in getting out of his hack, fell upon his back and head, and seemed dazed. Upon entering his house his wife, the plaintiff, says he was-dazed and complained of injury at the back of his head, and apparently suffered from the injury. Plaintiff’s expert evidence tends to show that death resulted from concussion of the brain. The defendant’s evidence is to the contrary, and indicates that it resulted from a diseased heart and that the deceased had other diseases which might well have caused his death. The lines were sharply drawn; able experts were called; their testimony cannot be reconciled; the judge, in substance, so informed the jury, and it was a question of fact for the jury, after having heard the experts and considered in full the details and results of the autopsy as to what was the cause of the death. They have decided all the questions of fact in favor of the plaintiff, and we are unable to say that such decision is not fairly sustained by the evidence.
The plaintiff’s daughter was not at home at the time of the alleged injury. She returned home at about ten o’clock at night and did not see her father until the next morning at breakfast. She was asked: “ Did he complain of pain ? ” The defendant’s counsel objected as incompetent, improper, irrelevant and not a part of the res gestae. The objection was overruled and the defendant excepted. “ A. Yes, sir. Q. And did he
The policy required that notice of the accident must be given to the company at its home office in Chicago “ as soon as may be reasonably possible.” The notice in this case was mailed to the local agents of the defendant at Glens Falls January nineteenth and by them was forwarded to the Chicago office of the defendant and it admitted receipt thereof to the plaintiff’s attorney January 23, 1915. The court properly refused to hold as matter of law that the' notice was not timely and • properly given under the policy. The plaintiff had a reasonable time under the circumstances in which to give the notice. It is evident that for some time after her husband’s death the plaintiff did not realize that death resulted from the injury.
The complaint alleged that the insured, after alightingfrom an automobile, slipped and fell to the ground, receiving injuries covered by the said policy and from the effects of and as a result of which he subsequently died on the 31st of December, 1914. The defendant, at the opening of the trial, moved to dismiss the complaint upon the ground that it did not appear
The judgment should, therefore, be affirmed, with costs.
All concurred; Cochrane, J., in result.
Judgment and order unanimously affirmed, with costs.