
    George H. Best, as Administrator of the Estate of Henry N. Best, Deceased, Respondent, v. North American Accident Insurance Company, Appellant.
    
      Insurance (accident) — switch tender killed while turning switch on tracks of street railway in middle of street — insurer not liable where policy contained provision excluding injuries sustained while working on public highway or railroad right of way.
    
    
      Best v. North American Accident Ins. Co., 221 App. Div. 829, reversed.
    (Argued March 30, 1928;
    decided April 13, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 28, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court upon an agreed statement of facts. The action was to recover upon a policy of accident insurance. The insured was employed by a street railway company as a switch tender, it being also his duty to keep the switch clear of snow and ice. While standing in the middle of the street, between the double tracks of the railway company engaged in turning or cleaning a switch he was struck by an automobile and killed. The policy contained a provision “ excluding injuries sustained while on a railroad right of way except on established crossing or sustained while working on a public highway or railroad right of way,” and defendant contended that by reason thereof it was not liable on the policy.
    
      J. Stanley Carter for appellant.
    
      Henry J. Crawford for respondent.
   Judgment of the Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, upon the ground that the insured was injured while engaged in work not covered by the provisions of the policy.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  