On appeal from the Essex County Circuit Court.
For the plaintiff-appellant, Mortimer Katz (William L. Vieser, of counsel).
For the defendant-respondent, McCarter & English (Verling C. Enteman and Nicholas Conover English, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of nonsuit entered in the Essex County Circuit Court in favor of the defendant, Metropolitan Life Insurance Company, hereinafter called the Insurance Company, and against the plaintiff, Sophie Dikowski.
On December 7th, 1931, the Insurance Company issued a policy of insurance on the life of one Zigmund Tishkavich in the face value of $600. The policy further provided that "upon receipt of due proof that the insured, after attaining age 15 and prior to attaining age 70, has sustained, after the date of this policy, bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the Insured within ninety days from the date of such bodily injuries * * * the Company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an accidental death benefit equal to the face amount of insurance then payable at death."
On May 9th, 1935, the plaintiff, a cousin of the insured, was duly designated the beneficiary under this policy.
On April 9th, 1937, a badly mangled body of a man was found along the right-of-way of the Pennsylvania Railroad Company, about one mile and a half toward Elizabeth from the Market Street station in Newark. This body was identified as that of the insured, Tishkavich, and the plaintiff thereupon made claim for the benefits payable under the policy above mentioned.
Payment was subsequently made by the Insurance Company of the value of the policy, but further payment of benefits for accidental death was refused. It is to recover under the clause providing for the "Accidental Death Benefit" that this action was brought.
At the trial the plaintiff introduced testimony by one William G. Tillou, who, on April 9th, 1937, had been an engineer for the Pennsylvania Railroad Company. He stated that on that day he had been operating an express train from New York to Philadelphia, stopping at Newark and Trenton.
Upon stopping at the station in Newark, he noticed a man wearing a light colored coat and a painter's cap standing on the platform. Before his attention was attracted elsewhere, Tillou noticed this man, as he walked along the platform, pull down his cap as if to make a dash toward the train to steal a ride. He did not see him again.
Upon arrival in Philadelphia a light colored coat was found hanging on the brake rigging at the front of the first Pullman car, immediately back of the locomotive. Tillou stated that this coat was similar to that ...