34 A.D. 399 | N.Y. App. Div. | 1898
This is a submission of a controversy on an agreed statement of facts, and the question presented is as to the liability of the defend
It is stated in the agreed statement of facts that “ on or about the 31st day of July, 1891, and while said policy was in force, the said Spencer D. C. Van Bokkelen was a passenger upon a railway train upon the Morris & Essex Division of the Delaware, Lackawanna & Western Railroad, running from Jersey City to Newark, New Jersey, the platform upon the cars of which train were open platforms, not enclosed by vestibules or doors, equipped with steps for the purpose of reaching said car platform from station platforms, and equipped with iron rods or handrails upon both sides of said steps;” that “ while said Van Bokkelen was riding as a passenger upon said train as aforesaid he went out from one of said cars upon the open platform, at .the forward end thereof, and while upon said platform he fell or was thrown down and was dragged for some distance while the train was in motion at a speed of from eight to ten miles an hour, holding while so dragged to the handrail or step of the platform. He finally lost his hold and fell from the car .upon a bridge which the train was then crossing, and from the bridge upon the ground below, and was dead when reached ; ” that “ it does not appear and'is not known by what means or from what cause deceased fell, or was thrown from said platform steps.” The defendant paid to the plaintiff the sum of $10,000 provided for in clause “e” of the policy,, and the question presented was whether, under clause “f ” of the policy, the defendant was bound to pay to the plaintiff double the sum mentioned in clause “ e,” viz., an additional sum of $10,000. '
It does not appear from this statement that the insured was-injured while upon the car, or that an accident to. the train, or to the insured while on the train, caused or contributed to the injury. It-
We have here a contract which clearly and without ambiguity expresses the obligation assumed by the defendant. It is that the defendant, “ if death results from such injuries (bodilyinjuries sustained during the term of this insurance, through external, violent and accidental means) * * * will pay ten thousand dollars to Caroline B. Van Bokkelen,” and “ if such injuries are sustained while riding as a passenger in any passenger conveyance, * * * the amount to be paid shall be double the sum specified.” Giving to the latter clause the meaning conveyed by the language used, it would limit" the double liability to a case where the passenger sustained the injuries while riding in a passenger conveyance. A conveyance is defined to be “ that by which anything is conveyed or transported, or which serves as means or way of carriage, as any vehicle.” To entitle the plaintiff .to the additional $10,000, it must appear that-the injuries were sustained while riding as a passenger in a conveyance used for the transportation of passengers. The clause, there-' fore, would not be operative where the insured was injured while riding outside or upon such vehicle. A different meaning might be given to the clause if it provided that the passenger must be in a train. But where the liability is confined to a case where the passenger was injured when “ in any passenger conveyance,” it would seem to exclude an injury received by a person when riding other-, wise than inside of a passenger conveyance. Thus it would, seem" that this clause would not apply if the insured was riding in a baggage car or express car attached .to a passenger train, for he would not then be in a passenger conveyance. And so the clause would not apply where the insured was riding on top of a passenger ear;
We have seen that the meaning of this clause is quite clear and free from ambiguity. Are'we justified in holding that it was intended to apply to a passenger outside of or upon a passenger conveyance, when the language used is that it was to apply only to a passenger in a passenger conveyance % There is nothing in the object sought to be attained by this- contract of insurance to justify us in giving a broader meaning to this clause. The policy insured against bodily injuries effected through external, violent or .accidental means, without regard to the position of the insured at the time the injuries were sustained, and it fixed a, gross sum to be jjaid to the beneficiary ■ where death resulted from such injuries. There was no limitation as to the place in which the insured was to be when such, injuries were sustained, and the liability of the defendant under this clause of the policy is conceded and has been discharged. But in.addition to the payment of the sum of money, under these circumstances, the defendant was willing to double its liability in case the deceased should sustain injuries when in a particular place, surrounded by such safeguards that there would be less probability of injury. It ' is quite apparent that- a passenger upon a railroad train is much less exposed to accident when in the car than when approaching the car or when upon the platform, either entering or alighting from it. Many cases have commented upon the fact that a platform of a car in motion- is not a safe place for a passenger to ride. Many things are liable to happen to a train in motion exposing a passenger upon
An examination of the authorities cited by counsel, and those we have been able to find, where clauses of this character have been construed by the courts, confirms the view above expressed. The decision of the United States Circuit Court of Appeals, in the case of Ætna Life Insurance Co. v. Vandecar (57 U. S. App. 446) is an express authority for the view we have taken of this clause. In that case the Court says : “ The words in a passenger conveyance,’ were doubtless used advisedly and for the express purpose of limiting the defendant’s liability. The reason for so doing is at once apparent; the place specified in the contract, ‘ in a passenger conveyance,’ is a place of little or no danger, and the risk assumed is slight, while the platform of a conveyance, using the motive power described in the contract, and especially as in this case, the platform of a railway car, is an exceedingly dangerous place when the train, to which the car is attached, is in motion.” This case is not unlike that of London Assurance Corporation v. Thompson (22 App. Div. 68), where under the policy the. liability of the defendant was limited to an insurance upon naval stores when in sheds or warehouses. We held that the policy did not attach to naval stores upon the trains or in the yards, or being shipped upon vessels or which were not actually - in the sheds or warehouses at the time of the fire.
The case relied on by the counsel for the plaintiff (Theobald v. Railway Passengers’ Assurance Co., 26 Eng. Law & Eq. Reports, 432) is distinguishable from the case at bar. The policy in that case insured the-holder against any accident that happened to him “ from railway accident whilst travelling in any class carriage on any
Counsel for the plaintiff, in stating- his contention says that the word “ in ” is ordinarily accepted as an equivalent of the word “ on; ”' and in construing this clause of the policy he contends that the deceased, while riding as a passenger on a passenger conveyance, ■ steam, cable or electricity, is entitled to the' benefit of the clause, that is, if he met..his- death while traveling as a passenger. We cannot agree with this.contention. If such had been the intention of the parties different words would have been used, and the sec-' tion, would not have been limited to injuries .sustained while riding as a passenger in a .'passenger conveyance.
We are of the opinion, therefore, that the defendant, is entitled to judgment, with costs. '
Van Brunt, P. J., Patterson, O’Brien- and McLaughlin, JJ., concurred.
Judgment ordered for defendant, with costs.