Dougherty v. Pacific Mut. Life Ins. 154 Pa. 385

Dougherty v. Pacific Mut. Life Ins. Co., Appellant.

Life insurance — Accidental injuries — Exception in policy.

In an action upon a policy of accident insurance which provided that the insurance company should not be liable if the assured was injured or killed while upon a railroad bridge, trestle or roadbed, it is not error for the court to charge that if the assured was crossing a railroad at a well-recognized crossing which had long been publicly used, and that he used proper care under the circumstances, and was killed, the mere fact that he was crossing the track would not prevent a recovery.

Argued Nov. 5, 1892.

Appeal, No. 212, Oct. T., 1892, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 707, on verdict for plaintiff, Mary Ann Dougherty, administratrix of John E. Dougherty, deceased.

Before Paxson, C. J., Green, Williams, McCollum, Mitchell and Heydrick, JJ.

*386Assumpsit on policy of life insurance.

At the trial, before Porter, J., it appeared that the decease was insured against “ such violent and accidental injuries as shall be externally visible upon his person, and which shall alone have caused his death within ninety days from the happening of the same.” The policy provided that the company should not be liable for an injury or death occurring while the assured was “ upon a railroad bridge, tressel or road-bed.” The evidence tended to show that on December 25, 1891, the deceased was found about two o’clock in the morning lying dead near the track of the Pennsylvania railroad at Swiss-vale. The only mark of violence was a wound in the temple. No one saw the deceased killed, and no one could tell how long he had been dead. From 150 to 200 feet from where the body was found was an old and well-used footpath crossing the railroad, which the deceased was accustomed to use. Deceased had -been collecting money for a church and had about $175 in his pocket early in the evening, but when the body was found the money was gone.

Plaintiff’s point was among others as follows :

“ 2. The burden of proof is on the insurance company, the defendant, to show by the evidence in the case, to the satisfaction of the jury, that John E. Dougherty broke or violated the condition or conditions of the policy set up and relied upon by the insurance company to prevent a recovery on the policy. Answer: It not being denied that the deceased came to his death through violent and accidental injuries, such as the general terms and scope of the policy would cover, then, in order to prevent a recovery, the jury must be satisfied by the weight of the evidence that the deceased had broken or violated the conditions of the policy.” [1]

Defendant’s points were among others as follows:

“ 8. Under all the evidence, the verdict must be for defendant.” Refused. [2]

“ 4. The plaintiff having furnished defendant company with the proof of death in this case, and the coroner’s inquest thereto attached, showing that John E. Dougherty was killed while walking on a railroad track, the burden of proof is thrown upon the plaintiff, and she must show, if possible, that John E. Dougherty was not killed while so walking on a railroad track or bed. *387Answer: The finding of the coroner’s inquest was only admitted as a part of the proof of loss furnished bjr plaintiff to the defendant company, and it is not evidence which you are to consider in making up your minds as to how the deceased was or was not, in fact, injured. You must determine that question from the evidence produced at the trial.” [3]

Yerdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-3) instructions, quoting them.

Albert York Smith, for appellants.

William Yost, for appellee, not heard.

January 3, 1893: