
    Frances E. Williams, Resp’t, v. The United States Mutual Accident Ass’n of the City of New York, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    
      1. Insurance (Accident)—Voluntary exposure to danger.
    Deceased, a book peddler, was walking on Church street, Saratoga, through which a railroad runs, and when 100 feet from the track he met two Germans, to whom he said, “Boys, look out for the engine, may be he will catch you." One of them replied, " I’m not afraid; my life is insured.” A train was at the time approaching, and they continued on their way. Deceased turned and retraced his steps, and when the engine was within twenty-five feet of the crossing he “ squatted down.” upon the track, and although the engineer reversed his engine, he was struck by the pilot of the engine. Held, that there was no evidence that the death of assured was caused by accident. It was a case of voluntary exposure to unnecessary danger-without a relevant fact to change the aspect of it.
    3. Same.
    It was error to leave it to the jury to pronounce whether the acts of the deceased were with suicidal intent, or whether he was not at the time excusably engaged in an endeavor to follow the Germans and save them from any possible injury by the approaching train, there being no evidence of inebriation in them, except their own testimony that they had taken one- or more drinks.
    (Finch and Maynabd, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon verdict and order denying motion for new trial upon the minutes of the judge.
    
      Richard L. Hand and Winsor B. French, for app’lt; Edgar Tl Brackett, for resp’t.
    
      
       Reversing 38 St. Rep., 378.
    
   Gray, J.

The present action was brought to recover the amount of insurance in a policy issued by the defendant, wherein it was agreed that the sum of $5,000 should be paid to the plaintiff, the wife of an insured member, if death should result to him from bodily injuries effected through external, violent and accidental means. The policy provided, however, that its issuance and acceptance were subject to certain conditions ; among which were the following, namely; that the insurance should not “extend to or cover * * * suicide, felonious or otherwise, sane or insane ; * * . * voluntary exposure to unnecessary danger, etc.”' The assured was struck by an engine and died shortly afterwards from the effects of his injuries. The circumstances of the occurrence were undisputed. The deceased was by occupation a book peddler- and lived at Saratoga Springs. Upon an evening in the latter part of November, 1890, he was walking and crossed from the west side of the railroad, at Church street, where the line of the road runs northerly and southerly, and continued, from the track, eastwardly along Church street. When about one hundred feet from the track he met with two Germans; one of whom testified that they were addressed with the remark, “ Boys, look out for the engine, may be he will catch you.” One of the men replied, “ I’m not afraid, my life is insured.” A train was at the time approaching in the distance. The Germans continued on their way westwardly and over the track. From what was further testified concerning the movements of the deceased, it appears that he must have turned and retraced his steps ; for the engineer of the approaching locomotive saw him coming west, towards the track, and when within a few feet of the crossing standing still. The train was moving only at about the rate of four miles an hour. The whistle was being blown and the bell rung; but, when within about twenty-five feet of the crossing, the engineer saw the man start and go upon the track. He says that if the man had kept on walking he could, in all probability, have gone across; but when upon the track he “ squatted down ” as in the position of kneeling.

The engineer, when he saw this, at once reversed his engine, and, after it had stopped, got down, went to the man andTound him lying against the pilot of the engine. Others came up, brought to the spot by the cry which the deceased uttered when struck; but the only evidence of what occurred, immediately before and at the time he was struck, was furnished by the engineer. The locality was lighted up by an electric light and the crossing ■does not appear to have been out of order. The deceased only had an umbrella in one hand and his canvassing book in the other.

Upon these facts the plaintiff, respondent here, insisted and insists that it was for the jury to pronounce whether the acts of the deceased were with suicidal intent, or whether he was not .at the time excusably engaged in an endeavor to follow the Germans and to save them from possible injury by the approaching train. The plaintiff’s counsel argues that there was room for an inference that these Germans were inebriated and that their condition had provoked the deceased to follow and to observe them, with the intention to interfere in their behalf if threatened with danger. But the difficulty is that there was no evidence of inebriation in the Germans and nothing more than their testimony that at the close of their day’s work they had taken one or more drinks. They had gotten beyond the track and there was nothing calling upon the deceased to incur jeopardy in their behalf. The theory rests upon the merest speculation and is without support in a single fact in evidence. The defendant could not be charged with any obligation under its contract, unless there were facts disclosed by the evidence which would permit an inference by the jury that such an accident had occurred as would bring the case within an admitted liability of the insurer. The respondent argues that because the evidence relating to the condition in life •of the assured, to his character, his temperament and his' mental soundness, was such as to negative the idea of the existence of a motive to destroy his life and a theory was furnished to account sufficiently for the exposure of his life to the imminent danger, the case was not one where the court should either presume a suicidal intent, or impute negligence in the preservation of life; and that it was the province of the jury to draw the proper inferences and to decide the question of liability upon all the circumstances.

The argument would be unanswerable in a case where the facts were disputed, and any at all existed from which an inference ■ was possible that there was a reasonable or excusable cause for-the occurrence. In the present case there is no dispute as to how the accident occurred; nor as to the conduct of the deceased which permitted it There is not a fact in evidence which explains the possibility of such an occurrence other than through the voluntary action of the individual, unless, upon the solitary fact that the two Germans whom he met with had taken one or more drinks, and. were in the habit of occasionally drinking, the mind might be permitted to erect the fabric of a case of a more or less helpless state of inebriation upon this occasion; the perception of such a state by the deceased; an anxiety and an endeavor to avert a peril to them, and his own loss of life in consequence. That would be going too far. Mental speculation and guess work cannot be permitted to supply the facts as the basis for a liability in such a case. As the ■ case appears from the record before us, there was no evidence that the death of the assured was the result of an accident in the proper and usual acceptation of that term. "When seen, just before the train struck him, he was at first standing away from the tack crossing, with the train about twentjr-five feet oií, and then deliberately going upon the track, .stopping and lowering his body in front of the engine. The men whom he had met and addressed had crossed and were away from the track. There was no evidence of their crossing back upon it; nor of any circumstance requiring the assured to change the position of safety in which he was as the tain was approaching the crossing. Can it be said with any semblance of reason, upon .these undisputed facts, that injury or death was not voluntarily and unnecessarily incurred, if not deliberately invited, by the assured? I do not think so. We may not be furnished with a motive; but that is not necessary. The evidence reveals an occurrence which to all appearance was deliberately contributed to, if not permitted, and, therefore, the theory of an accident is excluded. The proof would not be consistent with any such theory. It was certainly a case of voluntary exposure to unnecessary danger, without a relevant fact to change that aspect of it, and it is of no materiality whether the act is known to have been one of suicide or not.

The case should not have been submitted to the jury. The defendant was entitled to a dismissal of the complaint at the conclusion of the case, and the denial of its motion was error.

The judgment appealed from should be reversed, and a new", trial granted, with costs to abide the event

All concur, except Finch and Maynard, JJ., dissenting.  