73 A. 642 | N.H. | 1909
At the time the plaintiff received his injury he held a policy in the defendant company insuring him against the loss of a foot by complete severance at or above the ankle joint, in the sum of $100, subject to the proviso that if the injury resulted "wholly or in part from voluntary exposure to unnecessary danger or obvious risk of injury," or resulted from or was received "while violating the law, or violating the rules of a public carrier affecting the safety of its passengers or the public," he should be entitled to receive but $20. The defendant pleaded the exceptions contained in this proviso in defence of the action; and upon the submission of the evidence outlined in the statement of the case, the trial justice directed the jury to return a verdict for the plaintiff for $20. The parties then agreed that in case the ruling directing the verdict should be held to be erroneous, judgment should be entered for the plaintiff for $100, with interest from the date of the writ and taxable costs.
In directing the verdict, the court ruled as a matter of law that the plaintiff's injury resulted from voluntary exposure to unnecessary danger or obvious risk of injury, or resulted from or was received while violating the law, or violating the rules of a public carrier. If any one of these rulings was correct, the verdict should be sustained; otherwise it should be set aside, and a verdict entered in accordance with the agreement of the parties.
The meaning of the clause "voluntary exposure to unnecessary danger," as used in accident policies, has frequently been before the courts. In Keene v. Association,
In Burkhard v. Insurance Co., 102, Pa. St. 262, it was said: "A clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist; yet the exposure thereto, without any knowledge of the danger, does not constitute *299 a voluntary exposure to it. . . . The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental." In Lehman v. Casualty Co., 7 N.Y. App. Div. 424, 429, it was said that "one cannot be said to be guilty of a voluntary exposure to danger unless he intentionally and consciously assumes the risk of an obvious danger."
In numerous other cases the same conclusion has been reached. It is unnecessary to refer to them at length. See: Badenfeld v. Association,
It appears, therefore, that a voluntary exposure to unnecessary danger or obvious risk, within the meaning of the policy, is a conscious or intentional exposure to a known risk, and not a merely inadvertent or accidental one.
Now the evidence upon this branch of the case tended to show that the plaintiff, when he entered upon the tracks of the railroad, was not conscious that he was exposing himself to an unnecessary danger or obvious peril, and that his injury was accidental. He was making use of a path frequented by people in crossing and recrossing the railroad yard. The day was very stormy, with the wind blowing from the northwest. The plaintiff testified that before stepping upon the track he looked and listened, but saw and heard nothing. This evidence was surely not so conclusive that reasonable men must find that the plaintiff consciously and intentionally exposed himself to an unnecessary and obvious danger, and the court erred in withdrawing the question from the jury.
Did the plaintiff's injury result from or was it received while violating the law, or violating the rules of a public carrier? The plaintiff contends that the clause as to "violating the law" is limited in its application to violations of the criminal law (Cluff v. Insurance Co., 13 Allen 308; Lehman v. Casualty Co. 7 N.Y. App. Div. 424; Insurance Co. v. Bennett,
In the view we take of the case it is unnecessary to determine which of these contentions is right; for the evidence did not warrant the court in ruling that the plaintiff's act in crossing the tracks of the railroad was a violation of either the criminal or civil law. The defendant relies, in support of its contention that the plaintiff's injury was received while violating the criminal law, upon the provisions of section 1, chapter 75, Laws 1899, and the evidence wherein it appeared that the railroad company had posted notices in its yard in Berlin, distant from 150 feet to a quarter of a mile from the path where the plaintiff attempted to cross, warning people to keep off the tracks. To render the plaintiff's entry upon the railroad's right of way punishable as a crime, it should appear that a notice warning people not to enter under penalty of the law was posted at or near the path where the plaintiff and others were accustomed to enter and cross, and was maintained in such condition that those undertaking to enter there could, by the exercise of reasonable care, see and ascertain its contents. Brown v. Railroad,
As it might be found that notices were not posted so as to render people crossing where the plaintiff did liable to prosecution and fine, and that the practice of crossing there was such that the railroad knew or ought to have known of it, it might also be found that the plaintiff was not a trespasser, and that in entering upon the right of way he violated no rule of law, civil or criminal. Keene v. Association,
Judgment for the plaintiff for $100.
All concurred. *301