104 Neb. 655 | Neb. | 1920
On motion for a rehearing on an opinion and order affirming the judgment of the trial court. Zantow v. Old Line Accident Ins. Co., 103 Neb. 685.
Two questions arise: First, whether the benefits under this policy should be reduced from $1,000, the face of the policy, to $300, by reason of a clause in the policy providing that benefits should be so reduced in case insured should be injured after having changed his occupation to a more hazardous one, or while doing any act or thing pertaining to any such more hazardous occupation; or, second, whether the benefits should be increased to $3,000 under a provision of the policy that the benefits should be so increased in case the insured be injured “while riding as a passenger in the inclosed part of a railway passenger car or street car, or licensed steamboat, or licensed passenger elevator provided for the exclusive use of passengers, and due directly to the wrecking of such conveyance.”
The provision in the policy, providing for reduced benefits in case the insured should change his occupation to a more hazardous one, it seems to us, does not apiply, since such provisions as these only contemplate the actual substitution of one occupation-for another, and not merely a temporary resort to other activities. It can
The policy, however, goes further, and provides that the benefits shall be reduced if insured is injured while doing any act or thing pertaining to any such more hazardous occupation. At the time the insured was killed, he was riding in the caboose, seated with other passengers, who had paid their fares and who had been accepted, strictly as passengers, upon that train. The act or thing which he was then doing, riding upon a seat in this car, did not peculiarly pertain to tending cattle in transit. The cattle tender’s duties, from which the extra hazards arise, are in being compelled to alight at all times and places; in being about the cars; in going back and forth from the caboose to the cattle car in railroad yards where cars are moving and being switched; and in the actual handling and caring for the live- animals, which are closely constrained and under excitement of shipment. It is the duties of the occupation, which cause an increased likelihood of accident, that this clause is obviously intended to guard against, and when the insured is injured, not from a risk growing out of those duties, but from a risk common to other persons not so employed, it cannot be said that he was in the
When a person undertakes to perform the several duties of a hazardous occupation, though his undertaking is but temporary and casual, and under such circumstances or for so brief a period as to show no actual substitution of that occupation for his own, all of his acts, during the period over which the performance of these duties is distributed, do not necessarily pertain strictly to the hazardous occupation, but very many acts which he performs are acts to which no special hazard is attached, are not peculiar to such more hazardous occupation, and are common to people generally in different walks of life. If these same acts were performed as independent. acts, and injuries should result during their performance, no penalty would accrue in the nature of a reduction of the insurance benefits. Insured in this case could, without taking charge of live stock, have taken passage on the caboose, paid his fare, remained seated within the car, and have been in the performance of the very act which he was, in fact, performing when injured, and, if then injured, could, without question, have recovered the full amount of his insurance. If the identical act complained of, then, is an act which he could have performed without penalty, if done as an independent act, surely it cannot be said, merely because he was at that particular time in charge of cattle being shipped to market, that this same act is so related to the more hazardous occupation that it should bar recovery by the reduction of benefits.
It follows that the benefits under the policy are not required to be reduced by reason of the fact that the insured was riding in a car, as he was, with other pas
It then becomes necessary to determine whether insured was, at the time of the accident, riding as a-passenger in the inclosed part of a railway passenger car, within the meaning of the policy, so as to entitle his beneficiary to the $3,000 benefit.
From a reading of the clause as an entirety, we are constrained to hold that the words, “provided for the exclusive use of passengers,” were intended to apply to the several conveyances named, as well as to a licensed-elevator. It is true that no comma was placed before the word “provided,” and, were the punctuation looked to alone, this proviso might be limited to elevators only; but, as is said in Holmes v. Phenix Ins. Co., 98 Fed. 240: “The Century Dictionary tells us, what is common knowledge, that ‘there is still much uncertainty and arbitrariness in punctuation.’ It is always subordinate to the text, and is never allowed to control its meaning. The court will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly, without regard' to the punctuation marks, or the want of them. The sense of a contract is gathered from its words and their relation to each other, and, after that has been done, punctuation may be uséd to more readily point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words.” See cases cited in 13 C. J. 535.
The very evident meaning and purpose of the clause referred to was to allow increased benefits, should injury occur while insured was riding as a passenger in those conveyances only which are exclusively used for passengers, and about which therefore the. carrier or operator is required to throw all possible safeguards and protection to insure safe passage. The several con
The caboose in this case cannot be said to have been used exclusively for passengers. Though it carried some passengers, and might therefore be said, in a limited sense, to have been a passenger ear for that reason and to that extent, and though some particular passengers may have paid fare and may have been, unless riding under a special permit.limiting the obligation of [he railroad, entitled to hold the company to the same extent and liability as if they were passengers on any other railway passenger car or on a passenger train, still this car‘was nevertheless essentially a part of a train which was loaded with live stock, and, as a part of that train, was furnished for the purpose of carrying the train crew, their accessories, and the cattle tenders who accompanied stock and were riding under contracts, restricting the obligation of the company towards them as passengers. .
Our court has held that a railroad company may limit its liability to passengers, riding in the caboose of a freight train, to the common-law liability, and is not liable in such case under the statute. Chicago, B. & Q. R. Co. v. Mann, 78 Neb. 541; Chicago, B. & Q. R. Co. v. Troyer, 70 Neb. 293.
Here the car was not used strictly as a passenger car, nor for the exclusive use of passengers, but as an essential part of the freight train, and for the use of the freight crew and cattle tenders. Standard Accident Ins. Co. v. Hite, 37 Okla. 305, 46 L. R. A. n. s. 986.
The car would therefore not be operated as a car used exclusively for passengers, but would be subjected to the jolting, jarring, switching, and other inconveniences necessarily attendant upon the operation of a freight train, and the character of its use would, in fact, directly affect and increase the risks and hazards of those passengers riding upon it. •
Affirmed.
