
    Burkhardt v. Columbia Relief Fund Association, Appellant.
    
      Insurance — Accident insurance — Relief association — Disobedience of employer’s rules — Negligence—Street railways — Evidence.
    In an action on a policy of accident insurance to recover for personal injuries sustained by the insured while acting as a motorman, where the policy provides that there shall be no liability if the injuries are sustained by reason of the violation of a rule of the employer of the insured, and it appears that a rule of the employer forbade the insured to leave his car “without first throwing off the overhead switch, and removing the controller handle,” and the evidence is conflicting as to whether the insured had complied with this order, the case is for the jury and a verdict and judgment for plaintiff will be sustained.
    Argued Oct. 15, 1907.
    Appeal, No. 274, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,558, on verdict for plaintiff in case of Magdaline Burkhardt, Administratrix of August Burkhardt’s Estate, deceased, v. Columbia Relief Fund Association.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ;
    Affirmed.
    Assumpsit for accident insurance. Before Ralston, J.
    At the trial it appeared that August Burkhardt, a motorman employed by the Philadelphia Rapid Transit Company, was injured while at work on September 4, 1904. He was removed to a hospital, and suffered an amputation of one of his legs, dying early on the following morning. He was insured in the defendant’s company against accident. Benefits for nonfatal accident were payable to him, but for death to his wife. The wife, having failed to recover for death benefits, instituted this suit to recover benefits for nonfatal accident. The policy stipulated that the defendant should not be liable where the injuries resulted from the insured’s own negligence, or from a violation of the laws or rules of any company or corporation. One of the rules of the transit company was that motormen should not leave their cars without first throwing off the overhead switch and removing the controller handle. The evidence as to the deceased’s violation of this rule was conflicting. The court submitted the case to the jury.
    February 28, 1908:
    Verdict and judgment for plaintiff for 1168.75. Defendant appealed.
    
      Error assigned among others was in refusing binding instructions for defendant.
    
      Joseph M. Smith, for appellant.
    
      Charles S. Wood, for appellee.
   Opinion by

Oklady, J.,

After twice shifting its defense in regard to the particular clause in its policy under which it might be held to be liable, if at all, the defendant association finally depends on an interpretation it puts on inferences to be drawn from controverted facts. The inducing cause of the death of the plaintiff’s husband, was the sudden forward movement of the car on which he was the motorman. It is contended that the defendant is not liable because of the alleged violation of a rule of the employer, in leaving the car “without first throwing off the overhead switch and removing the controller handle;” but this was the disputed and important fact, which depended upon the testimony of several witnesses, who did not agree in their statements. The plaintiff was required to demonstrate affirmatively to the satisfaction of the jury that her husband did not in fact violate a rule of the company. She has done this, and has also satisfied the court in banc on the motion for judgment non obstante veredicto. The question of the motorman’s contributory negligence was submitted to the jury in a plain and clear manner, and the verdict rendered was fully warranted by the evidence. Had the verdict been in favor of the defendant it would not be disturbed as being contrary to the weight of the evidence, but the credibility of the witnesses is always for the jury, and the essential facts of this case being in dispute, the controversy was rightly left to the jury to pass upon the effect of the oral evidence in determining' their conclusion: Dinan v. Supreme Council, 210 Pa. 456.

The assignments of error are overruled and the judgment is affirmed.  