
    Helen Traphagen, an Infant, by William Traphagen, her Guardian, Resp’t, v. The Fidelity and Casualty Co. of New York, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July, 1887.)
    
    1. Insurance' (AccroENT)—Policy—Clause in, avoiding it in case of
    suicide.
    In an action upon an accidental insurance policy, which contained a clause avoiding it in case the insured destroyed his own life: Meld, that the burthen of proof is upon the defendant to show that the insured came to his death from causes against which he-was not insured.
    
      2. Same—Question for jury.
    When the case was submitted to the jury under an unexceptionable charge, and they found for the plaintiff, and the proof amply sustained, a finding that the death was accidental, and the defendant failed to establish any other cause against which plaintiff’s intestate was not insured, the appellate court will not interfere with their verdict
    Appeal from a judgment, in favor of plaintiff, entered upon the verdict of a jury at the Orange county circuit, and from an order denying a motion for a new trial on the judge’s minutes.
    This is an action to recover $5,000 on an accident insurance policy issued to Nelson Crist, by the defendant, for the plaintiff’s benefit. Mr. Crist was ran over by the cars and killed at Ontario, Canada, between one and two o’clock in the morning of October 24,1885. The answer is a general denial of liability, but on the trial, the defendant claimed either that Mr. Crist committed suicide by deliberately throwing himself under the car, or that his death was caused by an attempt to board a moving train. There was no eye-witness to the disaster, but evidence was submitted to the jury tending to prove that Mr. Crist, who was at the time a resident of Newburg, had become financially embarrassed; that he had negotiated fraudulent mortgages and was presumably fleeing from the apprehended consequences; and that the circumstances surrounding the occurence led to the conclusion that his death resulted from one or the other causes claimed by the defendant. On the other hand the plaintiff claimed that the condition of Mr. Crist’s affairs was consistent with the theory that he was anxious only to reach Canada; that no reasonable ground existed for the suspicion of suicide after he was once safely there; that his death was occasioned by purely accidental means; and that the burden was upon the defendant of showing either that the policy was void by reason of some act of Crist’s, or that his death was from a cause against which he was not insured. The question of fact was fairly left to the jury, the court admitting all the evidence offered by the defendant, and charging all of its requests. No exception was taken to any portion of the charge. The only exception taken by the defendant upon the trial was to the court’s refusal to grant a new trial on the minutes on account of the verdict being against the weight of evidence.
    
      Scott & Hirschberg, for resp’t; Moore, Low and Wallace, for app’lt.
   Pratt, J.

The burthen of proof was upon the defendant to show that the insured came to his death from causes against which he was not insured. It is indeed a question whether the plaintiff was not entitled to judgment upon the pleadings, after having put in his formal proof, but the case was submitted to the jury under an exceptionable charge, and they have found for the plaintiff.

It was a question peculiarly within the province of a jury to determine, as the evidence was such that honest minds might differ as to the inferences to be drawn from it. The evidence seems to rebut any conclusion that Crist committed suicide. His conduct immediately before the accident is inconsistent with any such theory. It is possible he might have attempted to board the car while in motion and the evidence is consistent with such a theory, but the burthen was upon the defendant, and we cannot say the jury was not justified in finding that the defendant railed to make that defense.

The proof amply sustains a finding that the death was accidental, and the defendant failed to establish _ any other cause against which plaintiff’s intestate was not insured.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  