
    Marion Lehman, Respondent, v. Great Eastern Casualty and Indemnity Company of New York, Appellant.
    
      Accident insurance—“voluntary exposure to unnecessa/ry danger" and injury “while violating lam," defined,—implied license to cross railroad tracks, areated by acquiescence—1890, chap. 565, § 53.
    In a policy of insurance upon the life of Morris Lehman, the husband of the plaintiff, it was provided that the indemnity was available only in case the assured met his death “ through external, violent and accidental means; ” and that-the insurance did not cover “voluntary exposure -to unnecessary danger; * * . * n0r. any injury, fatal or otherwise, caused directly or' indirectly ; (wholly or in part) * * * while violating law,” . . ,
    The General Railroad Law of the State provides that “no person, other than those connected with or employed upon the railroad, shall walk upon or along its track or tracks', except where the same shall be laid across or along streets ' or highways, in which case -he shall not walk upon the track-unless necessary to cross the same..”
    In an action brought to recover the amount of the policy the evidence tended to show that, when the accident happened, the deceased was on his way to the yard of Ginsburg & Sons, which was located east of the double tracks of the '“Belt 'Line” of the city of Buffalo and south of Sycamore street. He'had ' gone as far as the ^Sycamore street crossing, and then walked south along a , path upon the west side, of the west track until he had reached a point about . forty-five feet south of the south line nf Sycamore street, when he observed a train coming towards him from the south upon the east track. -He waited for this train to pass, and turned to cross the west track in the direction of the yard, and while in the act of turning and before he had '-placed'his foot upon the track, he was struck.by the pilot beam of a locomotive, coming from the north, and was killed. There was a path along the railroad track some four feet in width, which had, for a number of years,, been constantly used by the public to reach Grinsburg & Sons’ yard, to which there was no other approach from Sycamore street except through a gate for teams, which was usually kept locked.
    The defendant insisted:
    
      First. That the death of the assured was directly attributable to his violation of the statute forbidding persons to walk upon or along a track, except where the track was laid across or along streets or highways; and,
    
      Second. That his act amounted to a “ voluntary exposure to unnecessary danger,” within the language of the policy.
    
      Feld, that the statute was not a defense;
    That, in the first place, it might be said that the" deceased had not “ walked upon or along the track ” as matter of fact, but was in the act of stepping upon the track when he was injured;
    That, moreover, the use of the crossing by the public, as a means of reaching the yard, had been acquiesced in by the railroad company for a period which had ripened the use into a license, of which the assured might avail himself without violating the statute, as the provision of the statute was designed primarily to protect railroad companies, which, when they allowed the public to have a • crossing over their tracks, were not in a position to claim that the persons who had availed themselves of the privilege had violated the law;
    That it could not be said that the assured lost his life in consequence of his “voluntary exposure to unnecessary danger;”
    That “negligence” and “ voluntary exposure to unnecessary danger” were not necessarily, nor usually, equivalent terms;
    That “ voluntary exposure” involved design, and that a person could not be said to have been guilty of a "voluntary exposure to unnecessary danger,” unless he intentionally and consciously assumed the risk of an obvious danger; which conscious intention did not exist in the conduct of the deceased in this case.
    Appeal by the' defendant, the Great Eastern Casualty and Indemnity Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of February, 1896, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 29th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover the amount of a policy of insurance upon the life of one Morris Lehman, the husband of the .plaintiff.
    The indemnity afforded by such policy was available only' upon condition that the" assured should meet his death “ through external, violent and accidental means.”
    It appears that upon the 7th day of May, 1895, he was struck by a locomotive of the New York Central and Hudson River Railroad Company, and that, in consequence of the injuries he thus received, death immediately ensued.
    The accident occurred in the city of Buffalo, upon what is known as the “ Belt Line,” which is a double track system running around the outskirts of the city.
    Upon the day in question Lehman, presumably, was on his way to the scrap 'iron and steel yard of R. L. Ginsburg & Sons, which was located east of the belt line tracks and south of Sycamore street, with which firm he had business relations. He had gone as far as the Sycamore street crossing in a street car, but he left tins car at the crossing and proceeded on foot, along a walk or path upon the west side of the west track until he reached a point about forty-five feet south of the south line of Sycamore street, when he observed a train .coming towards him upon the east trackhe waited for this train to pass .and then .started to cross the west track in the direction of the . Ginsburg yard, and while in the act of turning, and before he had placed his foot upon the track, he was struck by the pilot beam of a locomotive going south, with the result already stated.
    The uncontradicted evidence discloses the fact that .the railroad ties extended some fifteen inches west of the- west rail, and that along the side of the track there was a walk or path made of cinders, which was some four feet in width, and which, for a number of years, had been constantly used by the public as a' means of ingress to, and egress from, the Ginsburg yard, there being no other means of reaching that yard from Sycamore street, except through a gate which was designed primarily for the accommodation of teams, and which was generally kept closed and locked.
    
      John G. Milburn and William Strauss, for the appellant.
    
      Moses Shire and Edwin L. Jellinek, for the respondent.
   Adams, J.:

The policy upon which this action is brought contains the following provision, namely:

“ This insurance does not cover * * * voluntary exposure to unnecessary danger; * * * nor any injury, fatal or otherwise, caused directly or indirectly (wholly or in part) * * * while violating law.”

And the defendant seeks to avail itself of this provision as a means by which to escape liability upon its contract of insurance, its contention being that the death of the assured was directly attributable to his violation of the law as well as to a voluntary exposure upon his part to an unnecessary danger.

These issues which were tendered by the answer present the only questions to be considered upon this appeal, and they will be disposed of in the order in which they have been mentioned.

In support of the claim that the death of the plaintiffs husband was caused by a violation of the law, the attention of the court is-directed to section 53 of the General Railroad Law (Laws of 1890, chap. 565, as amended by chap. 616 of the Laws of 1892), which, provides that:

“ No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.”'

It is insisted that when Lehman left Sycamore street and attempted to reach the Ginsburg yard in the manner he did, he was guilty of a plain violation of this provision, which was, of itself, sufficient to defeat a recovery.

It would perhaps be an adequate answer to this contention to suggest that, up to the time the assured met his death, he had not “ walked upon or along ” the railroad track. He had, to be sure, come over a walk or path running along the west side of and parallel with the tracks, but it will hardly be claimed that this, of itself, constituted any violation of the statute. It is urged, however, that when struck he was in the act of stepping upon the tracks with the obvious design of crossing them in order to reach his point of destination, and this is unquestionably true; but does this fact work any change in the situation ? We think not, when considered in connection with certain other facts and circumstances concerning which there is no dispute. And, in saying this, it might even be assumed that the endeavor to cross the track was equivalent to walking thereon.

It may also be noted in this connection that at the point where the decedent was intending to cross the railroad tracks were not “laid across or along” a public street or highway,but,nevertheless, it was at a place which the public had been in the habit of crossing for a long period of timeit was the customary and, practically, the only means people on foot had of reaching, the works of Ginsburg & Sons, and its use by the public, for this purpose, had been acquiesced in by the railroad company for a sufficient length of time for such uses to ripen into a license. . The assured, therefore, had the right to avail himself of that license, and in doing so it cannot be said that he was violating the law. (Nicholson v. Erie Railway Co., 41 N. Y. 525; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289; Byrne v. N. Y. C. & H. R. R. R. Co., 104 id. 362.) Right here it is proper to bear in mind that the statute referred to forms no part of the criminal law of this State, and that no penalty is imposed, in express terms, for a violation thereof. It is simply one of the provisions of the General Railroad Act, and while in a somewhat restricted sense it .may be said to have been induced by qrablic considerations, it was undoubtedly designed, primarily, for the protection of the railroad companies, and, therefore,, when they consent to the use of their tracks by the public for the purposes of a highway crossing, it would require a somewhat strained construction of the section to hold that , the people availing themselves of the privilege thus afforded, became, ipso facto, criminals. (Duncan v. Preferred Mutual Accident Assn., 13 N. Y. Supp. 620; affd., 129 N. Y. 622.)

We turn, therefore,. to the second proposition advanced by the defendant for the purpose of determining what consideration it ought to receive, and to what extent the facts. of the cases sustain the.contention that the.assured lost his life in consequence of his voluntary exposure to unnecessary danger.” ' hiere, again, the court is relieved from the embarrassment which usually accompanies an attempt to review a casé presenting conflicting statements of fact, for, most fortunately, there is no dispute as to, the circumstances attending the accident, nor is there any reason to doubt that its one controlling cause was the carelessness of Lehman himself, but with this much conceded, the important question still remains, does this act of his, careless and heedless as it undoubtedly was, relieve the defendant from the obligation of its contract of insurance ? Some authorities may be found among the earlier cases for the contention that in construing this provision" of the policy, “ negligence ” and “ voluntary exposure to unnecessary danger ” must be, regarded as equivalent terms. (Sawtelle v. Railway Passenger Assurance Co., 15 Blatch. [U. S.] 216; Hoffman v. Travellers' Insurance Co., N. Y. Supreme Court, 1871, not officially reported, but discussed in 7 Am. Law Rev. 594.)

But the rule now seems to be virtually settled in most of the States that the two expressions are not necessarily, nor usually, synonymous (Miller v. Insurance Co., 92 Tenn. 167; Hull v. Equitable Accident Assn., 41 Minn. 231; Schneider v. Provident L. Insurance Co., 24 Wis. 28; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Williams v. U. S. Mutual Accident Assn., 133 N. Y. 367; S. C., 82 Hun, 269), and the reason for this rule is stated by Allen, J., in Keene v. New England Mutual Accident Assn. (161 Mass. 149), to be that, “ By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or in part from his own inadvertence.”

We come, therefore, to the consideration of what is meant by a voluntary exposure to unnecessary danger,” and this involves a definition of the word voluntary.”

As we regard it, a voluntary performance of an act must require an exercise of the will of the actor. In other words, it is an act done in obedience to, and regulated by, the will of the person who does it. It follows, therefore, that it must be done designedly and not accidentally, and, consequently, one cannot be said to be guilty of a voluntary exposure to danger, unless he intentionally, and consciously assumes the risk of an obvious danger. (Miller v. Ins. Co., 92 Tenn. supra; Keene v. N. E. M. Accident Assn., 161 Mass, supra; Williams v. U. S. Mutual Accident Assn., 82 Hun, supra, and 133 N. Y. 367.) The case last cited furnishes a fair illustration of the distinction which we are seeking to draw, for there the assured, in a spirit of bravado, sat down upon a railroad track in front of an approaching engine, and while so doing was struck and killed. This was a conscious deliberate act, and was, therefore, beyond all question, one which was voluntary upon his part; but in the case at bar the facts are quite different. Lehman had occasion to cross the tracks in order to reach the point for which he started, and as he was about to consummate his purpose a train was observed by him approaching from the south upon the easterly track. He waited until the train had passed, and then, without taking' the precaution- to" notice the train which was coming towards Mm from the north, upon the track next to him, he raised his foot and was immediately struck and killed. In this final act of Lehman’s is found another and very apt illustration of this same distinction, for, when he saw that the train was coming from the south he became conscious of existing danger, and exerted his will in order to avoid it, but when this particular danger had passed, he unconsciously and involuntarily exposed himself to another and a greater'risk, in consequence of which Ms life was sacrificed.

Our attention is directed to an English authority (Cornish v. Accident Ins. Co., L. R. [23 Q. B. Div.] 453), which it is claimed is precisely in point, and ought to be decisive of this case.

The circumstances of the two cases are quite- similar, it is true, but there is one very marked distinction which deprives the former of any authoritative value in our attempt to decide the latter, and that distinction lies in the difference in the language of the excepting clauses of the- two policies. In the Cornish case the policy excepted from the risks insured against accidents happening “ by exposure of the insured to obvious risk of injury;” but in this case only those which- occur by reason of “ voluntary exposure to unnecessary danger.” We have attempted to show what is intended by the latter term,, and if we are correct in the views expressed, its meaning is quite different from “ exposure to obvious risk.” If that had been the language of the policy in suit,- the- defendant might, with more reason, claim that it was relieved from liability, for the risk or' danger which confronted Lehman was an obvious one, whether he observed-it or "not;. and by exposing himself to it, whether voluntarily or involuntarily, his case would have been brought within the letter and possibly within the spirit of the provision upon which the defendant relies.

These considerations lead to the- conclusion that no- error was committed by the trial court in its direction of a verdict in favor of the plaintiff, and that. consequently the judgment and order appealed from should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  