
    Huston v. The Traveler's Insurance Company.
    
      Accident insurance policy — Restriction as to entering or leaving moving trains — Plaintiff injured when about to step on can— Application of rule — Personal injury — Construction of contracts.
    
    An accident policy contained this exception: “This insurance does not cover entering or trying to enter or leave a moving conveyance using steam as motive power.” The insured was walking along a railroad track, the ground being slippery and icy, when a freight train overtook him, going slowly, and it occurred to him that he would step on the caboose and ride, and as he was about to step on, but before he had touched the car, he slipped and fell, and his left foot was crushed by the hind wheels: Held, that what he did after the purpose to step on the car caused him to change his conduct from that of walking along the track, to that of making preparation to step on the car, was within the exception, whether be had caught hold of the car or not.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Summit county.
    The action was brought by the plaintiff in error, also plaintiff below, against the insurance company to recover one-third part of a $5,000 accident policy, the injury caused by the accident having resulted in the amputation of the left foot of the plaintiff.
    The material facts are that he was walking along the west side of the track of the Erie Railway at Akron going north about seven o’clock in the evening of January 21, 1897, when he was overtaken by a freight train going in the same direction, a little faster than he could walk, and as the caboose was nearing him he looked around and it occurred to him that he would step onto the caboose and ride up to Exchange street and step off, and as he was about to step on, but before he had taken hold of the caboose in any manner, but while he was expecting to do so, he slipped and fell, the ground being icy, and in falling his left foot got under the rear wheels and was crushed.
    The policy contained the following:
    “This insurance does not cover * * * violating law; voluntary exposure to unnecessary danger; entering or trying to enter or leave a moving conveyance using steam as a motive power; being in or on any such conveyance not provided for the transportation of passengers; being on a railway roadbed.”
    The court charged the jury as follows:
    “If he intended to take this car and had started to reach it, and before actually reaching the point where he could enter, and had not taken hold of or was clinging to the car in any manner or attempting to enter it, but slipped upon the ground in such a manner that his foot was crushed by the wheel of the passing car, he would not be within the terms of this exception.”
    The jury returned a verdict in favor of the plaintiff, a motion for a new trial was overruled, and judgment entered upon the verdict. Proper exceptions were saved wherever necessary.
    The circuit court reversed the judgment on the ground that it regarded the above charge as erroneous. Thereupon the plaintiff came here seeking the reversal of the circuit court and an affirmance of the common pleas.
    
      Messrs. Musser & KoKler and Mr. F. H. Waters, for plaintiff in error.
    
      Messrs. Allen & Cobbs, for defendant in error.
   By the Court:

The part of the charge complained of was erroneous, and the circuit court was right in reversing the judgment of the common pleas.

While the meaning of such clauses in an accident policy should he construed with fair strictness against the company, there should be no strained or unnatural construction put upon the acts of the insured to save such acts from coming within such exceptions.

In this case the plaintiff was walking along the railway on slippery icy ground, and it occurred to him that he would step upon the caboose, and he thereupon acted upon that intention, and changed from walking along the track on the slippery ground, to-making preparation to step on the caboose, and from the moment that he so changed his conduct of walking along the track, and took on the conduct of attempting to step on the caboose, that is, of trying to enter the caboose, and whatever he did in his preparation to so step upon the caboose was an act in trying to-enter it, and was within the exception, whether he had then taken hold of the car or not. The getting into position on a slippery place to grab hold of the-caboose as it would come along by his side, would be more likely to cause a fall, than the taking hold of the handle bars of the caboose itself.

With this view of the law it will be seen not only that the reversal was right, but that several other parts of the charge were wrong.

Judgment affirmed.

Burket, Davis, Shauok and Price, JJ., concur.  