{ "id": 5788173, "name": "Fidelity & Casualty Co. v. Hannah M. Sittig", "name_abbreviation": "Fidelity & Casualty Co. v. Sittig", "decision_date": "1898-12-23", "docket_number": "", "first_page": "245", "last_page": "249", "citations": [ { "type": "official", "cite": "79 Ill. App. 245" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "114 Ill. 533", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2870870 ], "opinion_index": 0, "case_paths": [ "/ill/114/0533-01" ] }, { "cite": "50 Mo. App. 459", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 8850596 ], "opinion_index": 0, "case_paths": [ "/mo-app/50/0459-01" ] }, { "cite": "80 Ga. 541", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 66132 ], "opinion_index": 0, "case_paths": [ "/ga/80/0541-01" ] }, { "cite": "134 Mass. 175", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2126652 ], "opinion_index": 0, "case_paths": [ "/mass/134/0175-01" ] }, { "cite": "31 N. E. 222", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "62 N. W.. 990", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 } ], "analysis": { "cardinality": 531, "char_count": 9485, "ocr_confidence": 0.542, "pagerank": { "raw": 1.3266558591939842e-07, "percentile": 0.6279599698669691 }, "sha256": "a1daaa6af901a51ca5b7d193d5b1d486a659fee79cb221db46cf0c1ab925d739", "simhash": "1:5cfe5f1efe441f8d", "word_count": 1620 }, "last_updated": "2023-07-14T14:55:44.895596+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fidelity & Casualty Co. v. Hannah M. Sittig." ], "opinions": [ { "text": "Mb. Peesiding Justice Fbeeman\ndelivered the opinion of the court.\nVoluntary exposure to danger implies something more than an act of mere volition. One may do a voluntary act which is dangerous without consciousness that he is thereby incurring serious risk. To constitute voluntary exposure to danger, appreciation of the danger must exist coincident with the voluntary act by which exposure is incurred. If' at the time when by his own volition one puts himself in danger, his attention is so engrossed with other considerations that for the time being he is blind to the existence, nature and extent of the danger, then, while his act is voluntary, his exposure to the danger may not be, because for the moment he is ignorant of its existence.\nIt is common observation that brakemen and conductors are frequently in the habit of boarding their trains when the latter have begun to move. Long practice and experience have given them a facility in so doing, which removes from their minds the apprehension of danger. The danger exists, because accidents may and do occur from boarding trains in motion, but for an experienced brakeman or conductor the act may not be voluntary exposure to danger, because to the mind of such a man no danger is involved.\nA steamer started from Chicago to cross Lake Michigan on a stormy winter night. She was overwhelmed by the heavy seas, crushed in the floating ice, and all on board were lost. A passenger who thus lost his life could have reached his destination by rail within three hours with entire safety. He could have made the trip in a shorter time than the steamer would cross under ordinary conditions, and safe from storm and ice and wave. He chose the lake instead. -The act of exposure was voluntary, the danger unnecessary. Was it \u201c voluntary exposure to unnecessary danger \u201d which would preclude recovery under a policy such as that under consideration ? Clearly not. The danger was not obvious to the passenger, nor probably to the officers and crew of the steamer, although the risk in such a storm with high seas and fields of floating ice was, as the event proved, very great. But if the apprehension of danger was not in the mind of such passenger, coincident with the voluntary act by which he exposed \u2022 himself to it, then the act was not a voluntary exposure to the danger.\nIf it be true in the case at bar that the deceased was killed by violent contact with the ticket office which stood close to the track, and was thus brought near the platform and steps of the moving cars to which he was clinging, and if this was a danger which he had not foreseen\u2014of which he was ignorant\u2014then he did not voluntarily expose himself thereto.\nIf, on the other hand, he was killed by falling, because of his failure or inability to secure a foothold upon the steps under the projecting platform upon which he was attempting to climb, it was a question of fact whether, taking into consideration the speed of the train, the height of the platform and all the circumstances, he had or had not reasonable cause to apprehend danger of such failure when he undertook to board the train in motion; and understanding, or having reasonable cause to understand that there was danger, voluntarily or intentionally assumed it.\nThe jury have found, in answer to a request for a special finding at the instance of appellant, that the deceased did not voluntarily expose himself to unnecessary danger, and we can not say that such finding was not warranted by the evidence. The testimony was conflicting as to the speed of the train, whether he was injured by the ticket office or lost his hold and fell. There is evidence to the effect that his neck and left jaw were broken. He fell immediately after passing the ticket office, outside of and parallel to the rails of the track, with his head to the south, in which direction the train was moving. In that position, the fingers of his left hand and the heel of his left foot were injured by the car wheels. There was evidence from which the jury might properly conclude that he was killed by contact with the ticket office, and that this was a danger of which, under the circumstances, he was ignorant, and which he did notx apprehend.\nIn Burkhard v. Travelers Ins. Co., 102 Penn. State, 262, 267, the court say's : \u201c A clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist, yet the exposure thereto, without any knowledge of the danger, does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which prompted the action.- The act maybe voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental.\u201d\nIn cases cited by appellant\u2019s counsel, the clause m the policies in controversy differs materially from that in question here. In the case of Smith v. Preferred Mutual Accident Association, 62 N. W.. 990, the policy was to be void if the accident occurred \u201c from either voluntary or unnecessary exposure to danger or to obvious rish of injury.\u201d In Williams v. U. S. Mutual Accident Association, 31 N. E. 222, the court said that under the facts \u201c the theory of accident is excluded.\u201d In Tuttle v. Travelers Ins. Co., 134 Mass. 175, the language of the policy was, \u201c exposure to any obvious or unnecessary danger,\u201d and the insured was \u201c required to use all due diligence for personal safety and protection; \u201d the court held that deceased had violated both of these provisions.\nIn Travelers Ins. Co. v. Jones, 80 Ga. 541, the clause involved was \u201c voluntary exposure to unnecessary danger, hazard or perilous adventure,\u201d and the evidence showed that the insured was injured by falling through a railroad trestle on a dark and rainy night, at a place which he knew was dangerous, when there were other ways for him to go.\nIn Bean v. Employers\u2019 Liability Ass\u2019n Corp., 50 Mo. App. 459, the insured was attempting to pass over the drawheads or bumpers of two freight cars standing at a crossing, and while so doing the train moved and his foot was crushed. He could have gone around, and had waited some fifteen minutes for the train to pass before trying to cross over. The court said that the evidence showed the danger to be obvious, the insured grossly negligent, the act voluntary, intentional and deliberate, one which \u201c reasonable and ordinary prudence would pronounce dangerous.\u201d\nIn Sawtelle v. The Railway Pass. Ass\u2019n Co., 15 Blatchford, 216, the clause in question included \u201c hazard or perilous adventure \u201d and \u201c standing, riding or being upon the platform of moving railway coaches.\u201d The assured was killed by falling from the platform of a moving car at night.\nThe purpose and object of the policy under consideration was, according to its terms, to insure \u201c against bodily injuries sustained through external, violent and accidental means.\u201d The death of the insured was thus occasioned.\nIn National Benefit Ass\u2019n v. Jackson, 114 Ill. 533, it was held that deceased, having been killed while in the discharge of his regular duty as yard switchman, his death was not caused by \u201c voluntary exposure to unnecessary danger.\u201d The court said that death resulted \u201c from an accident for which the contracting parties intended the association should be liable.\u201d\nThe judgment of the Superior Court is affirmed.\nMb. Justice Horton : I can not concur in this opinion.", "type": "majority", "author": "Mb. Peesiding Justice Fbeeman" } ], "attorneys": [ "John A. Post and John B. Beady, attorneys for appellant.", "Thobnton & Chancelloe, attorneys for appellee." ], "corrections": "", "head_matter": "Fidelity & Casualty Co. v. Hannah M. Sittig.\n1. Voluntary Exposure\u2014To Unnecessary Danger Defined.\u2014Voluntary exposure to danger implies something more than an act of mere volition. One may do a voluntary act which is dangerous without consciousness that he is incurring a serious risk. To constitute voluntary exposure to danger, appreciation of the danger must exist coincident with the act by which exposure is incurred. If at the time when, by his volition, one puts himself in danger, his attention is so engrossed with other considerations that for the time being he is blind to the existence and extent of the danger, then while his act is voluntary his exposure to the danger may not be, because he is ignorant of its existence.\nAssumpsit, upon a policy of accident insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1898.\nAffirmed.\nMr. Justice Horton dissenting.\nOpinion filed December 23, 1898.\nThis was a suit to recover upon a policy of accident insurance. The insured was killed while attempting to board a suburban train on the Illinois Central Railway. The evidence tends to show that he reached the neighborhood of the steps of the station platform just after the train had started; that he threw his valise on the platform of the car, seized the railing and attempted to climb on, but either lost his hold and fell after being carried some distance, or else was knocked off and killed by coming in contact with a small building used as a ticket office which stood very near the track, and distant about one hundred and forty or fifty feet from the station platform.\nThe policy contains a clause providing that the insurance should not cover \u201c voluntary exposure to unnecessary danger.\u201d There was a verdict and judgment for the beneficiary from which the company appeals.\nJohn A. Post and John B. Beady, attorneys for appellant.\nThobnton & Chancelloe, attorneys for appellee." }, "file_name": "0245-01", "first_page_order": 255, "last_page_order": 259 }