On appeal from a judgment of the Supreme Court.
For the appellant, Donald B. Munsick and W. Stanley Naughright.
For the respondent, Arthur T. Vanderbilt.
The opinion of the court was delivered by
HEHER, J. The challenged judgment was entered on a directed verdict in favor of defendant. The pleaded cause of action is grounded upon a policy of insurance issued by defendant, indemnifying plaintiff "against loss resulting directly, and independently of all other causes, from bodily injuries effected solely through accidental means." Plaintiff fell or was thrown under the wheels of a train of the Erie Railroad Company, at its Arlington station, and suffered the loss of both feet. The indemnity provided by the policy for such an injury was the sum of $10,000, or, in lieu thereof, at the insured's option, a "weekly indemnity ($50) so long as he lives." Plaintiff elected to take the latter, and makes claim for treble indemnity under the following clause of the policy:
"Section IV: The Company will pay triple the amount, otherwise payable under Sections I, II or III for any loss caused or sustained as follows: while the Insured is a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps or running board of railway or street railway cars); * * *."
Defendant concedes liability for single indemnity only. It states the sole question raised on appeal to be "whether
or not plaintiff was a passenger in or on the train in question, including the steps thereof, at the time the accident occurred," within the intendment of the triple indemnity provision of the policy. The trial judge, conceiving that the case is ruled by Anable v. Fidelity and Casualty Co., 73 N.J.L. 320; affirmed, 74 Id. 686, and Bernardine v. Erie Railroad Co., 110 Id. 338, resolved this inquiry in the negative.
The proofs tended to establish the following matters of fact: On March 12th, 1931, plaintiff purchased from the Erie Railroad Company a ticket entitling him to transportation from Jersey City to Bloomfield. He boarded a train that departed from the Jersey City station at nine-forty-four P.M. Before the train reached Arlington, an intermediate station stop, he indicated to one of the trainmen a purpose to leave the train and invite a friend or two he thought might possibly be there to accompany him to a business meeting to be held that evening in Bloomfield. He had previously lived in Arlington. Taking his ticket, he left the train when it halted at the customary station stop.
The locus consisted of three parallel tracks, extending east and west, with the station on the southerly side thereof. The most southerly track, immediately adjacent to the station platform, was devoted to the running of east-bound trains, while the adjoining track to the north carried the west-bound trains, the direction in which the train in question was moving. The third and most northerly track was used as a siding.
Plaintiff descended from the train to the station platform, and walked westerly toward Elm street, which intersects the railroad a short distance to the west of the station. Finding no acquaintance there, he crossed over to the northerly side of the train, using the vestibule of the head coach for the purpose (the highway crossing itself was blocked by the standing train), and, discovering none of his friends there, he proceeded along the north side of the west-bound track, between it and the siding, with the intention of reboarding the train and continuing his journey to Bloomfield.
This is his version of the circumstances attending the accident: "When I had walked about half the distance of that [116 NJL Page 202] car, I should say somewhere near the middle, it seemed that I heard one of the trainmen call, 'all aboard,' on the opposite side, so I hastened -- I walked a little bit faster toward the center, and when I was almost within reach of the handrail, I heard, or I seemed to hear, two little blasts of a whistle or signal -- something to that effect, and then the train had been started, and then from that point I proceeded to reboard the train. * * * I took hold of the grabrail or handrail with my right hand -- that is at the front end of the rear coach, the step on the right-hand side -- the right-hand of the rear coach. I grabbed hold of the grabrail with my right hand, and swung my left foot up to the step, and then about that time or during the process of swinging up, my right foot slipped on something -- a tie or some object. Of course, I don't know. I assumed it was a tie, but it slipped, and that threw me slightly off my balance, causing the foot to slip off the step and my shin to strike a car step or tread -- probably a tread. It struck it a pretty good blow -- enough to graze it. Then I naturally fell forward on the step on my knee, and I grabbed the diagonal handrail with my left hand, so that I would be drawn on the steps with both knees about that time. The train started up during this attempt to adjust myself, and, of course, there was a jerk -- there is somewhat of a jerk when any train starts, and I fell off balance and struck my head on some object there over the left ear (indicating) which created further difficulties for me. Q. What do you mean? You say 'which created further difficulties for me.' A. Well, I mean it dazed me somewhat, and then my left knee slipped off the step and became involved with one of the wheels, apparently. Well, it did become involved with one of the wheels, because it was crushed ...