FOOTNOTES:
[65] Abbott v. Wolcott, 38 Vt. 666.
[66] U. S. v. Hart, Peters C. C. 390.
[67] Kennedy v. Way, 3 Law Reporter (N. S.), 184, Brightley (Pa.), 186.
[68] Moody v. Osgood, 60 Barb. 644.
[69] Davies v. Mann, 10 M. & W. 545.
[70] Angell on Highways, § 263.
[71] Hull v. Richmond, 2 Wood. & M. 343.
[72] Mathews v. Winooski Turnpike Co., 24 Vt. 480.
[73] Loker v. Brookline, 13 Pick. 346; Holman v. Townsend, 13 Met. 297.
[74] City of Providence v. Clapp, 17 How. 168.
[75] Wilson, J. Caswell v. St. Mary’s, etc., Road Co., 28 Q. B. (Ont.), 247.
[76] Brailey v. Southborough, 6 Cush. 141; Willard v. Cambridge, 3 Allen, 574. In Massachusetts one cannot recover damages for not being able to use the road, though he may for injuries received while using it.
[77] Woolrych on Ways (2d ed.), 78; Campbell v. Race. 7 Cush. 408.
[78] Taylor v. Whitehead, 2 Dougl. 749; Carrick v. Johnston, 26 Q. B. (Ont.), 65.
[79] Hubert v. Groves, 1 Esp. 148; Griffin v. Sanbornton, 44 N. H. 246.
[80] Greasley v. Codling, 2 Bing. 263.
[81] Tisdale v. Norton. 8 Met. 388.
[82] Robinson v. Cone, 3 Law Reporter (N. S.), 444; 22 Vt. 213.
[83] Hartfield v. Roper, 21 Wend. 615; but see post.
[84] Barnes v. Cole, 21 Wend. 188; Bridge v. Grand Junction Rw., 3 M. & W. 246.
[85] Cassedy v. Stockbridge, 21 Vt. 391.
[86] Rice v. Montpelier, 19 Vt. 470; Tisdale v. Norton, 8 Met. 388.
[87] Mt. Vernon v. Dusouchett, 2 Cart. 586.
[88] Cobb v. Standish, 14 Me. 198.
[89] Jenks v. Wilbraham, 11 Gray, 142.
[90] Hunt v. Winfield, 36 Wis. 154; Woodman v. Nottingham, 49 N. H. 387.
[91] Reed v. Belfast, 20 Me. 246; Chidsey v. Canton, 17 Conn. 475.
[92] Sandford v. Augusta, 32 Me. 536.
[93] Jaquish v. Ithaca, 36 Wis. 111.
[94] Toms v. Whitby, 35 Q. B. (Ont.) 195; S. C., In Appeal, 37 Q. B. 100.
[95] Bliss v. Deerfield, 13 Pick. 102, Davis v. Hill, 41 N. H. 329.
[96] Palmer v. Andover, 2 Cush. 601.
[97] Kelsey v. Glover, 15 Vt. 708; Swift v. Newbury, 36 Vt. 355.
[98] Palmer v. Andover, 2 Cush. 601.
[99] Houfe v. Fulton, 29 Wis. 296; Stone v. Hubbardston, 100 Mass. 49; Kelley v. Fond du Lac, 31 Wis. 180.
[100] Lower Macungie Tp. v. Merkhoffer, 71 Penn. St. 277.
[101] Wharton on Neg. § 105.
[102] Fogg v. Nahant, 98 Mass. 578; S. P., 106 Mass. 278.
[103] Wharton, § 106.
[104] Welsh v. Lawrence, 2 Chitty, 262; Smith v. Smith, 2 Pick. 621.
[105] Hunt v. Pownal, 9 Vt. 411.
[106] Moore v. Abbot, 32 Me. 46.
[107] Moulton v. Sanford, 51 Me. 127; Horton v. Taunton, 97 Mass 266, n.
[108] Davis v. Dudley, 4 Allen, 557.
[109] Titus v. Northbridge, 97 Mass. 258.
CHAPTER III.
INSURANCE.
What’s an Accident?—Major Vis.—Exposure and Death.—Wholly disabled.—What can be recovered.—Heavy Weights.—Stumbling.—Pitchforked.—Change of Business.—Lost beneath the Dancing Waves.—A Man not a Private Conveyance.—Carelessness.
Shortly after the events related in my last chapter, I expected business to call me away from home. Accidents by rail—explosions, collisions, over-turnings, exploits of the fire-fiend—had become so much the reverse of angel’s visits, that though some said I had the hanging mark upon me, I determined to make assurance doubly sure and take a bond of fate in the shape of an “accident ticket;” not that hope told a flattering tale, or that vain expectations of making anything by the transaction filled my soul, but as a preventive rather than a cure, for accidents seldom happen when one is prepared, as showers seldom descend when one is armed cap-a-pie with umbrella and thick boots.
Ere spending my twenty cents, however, I determined to find out what an accident, within the meaning of the ticket, really might be; but I discovered that no satisfactory definition of the word had ever been given by the courts. Cockburn, C. J., says that it means some violence, casualty, or vis major; and that disease or death, generated by exposure to heat, cold, damp, the vicissitudes of climate or atmospheric influences, cannot be called accidental, unless, perhaps, where the exposure is actually brought about by circumstances which might give it the character of accident,—as a shipwrecked mariner dying from exposure to cold and wet in a small boat upon the roaring, raging ocean.[110] This decision settled that I could recover nothing if my nose or my toes were frozen off; nor if my early demise was brought about by croup, measles, or small-pox, caught in the cars, could my family recover any remuneration for the loss of the house-band. If, like the good Samaritan’s friend, I should chance to fall among thieves, who should strip me of my raiment, wound me, and depart leaving me dead, that, probably, would be considered a death by violent and accidental means, for Judge Withey, of Michigan, has laid it down that an accident is any event which takes place without the foresight or expectation of the person, acted upon or affected by the event.[111] In Maryland it has been defined as an unusual and unexpected result attending the performance of a usual and necessary act; and there it has been decided that every injury caused by accident, save those specially excepted by the policy, are covered by it.[112] And in New York an accident is said to be something which takes place without any intelligent or apparent cause, without design and out of course.[113]
I was pleased to find that I might recover for a “railway accident,” if anything happened to me while travelling by the cars, although nothing happened to the train, for instance, if while getting out, after the cars had stopped, I should slip, fall, and injure myself, not through any negligence of my own, but because the steps were slippery;[114] and that any money to which I might become entitled under the policy would not in any way lessen the damages which I might claim against the carrier for any injuries received to my corpus.[115] This is only fair, as one pays premiums to insure himself on the understanding that his right to be compensated when he is injured is an equivalent for the premium paid. It is a quid pro quo; larger if he gets it, on the chance that he may never get it at all.[116] Where compensation to the insured is granted “in case of bodily injury of so serious a nature as wholly to disable the assured from following his usual business, occupation, or pursuits,” I would be entitled to pay if so disabled that I could not get to my office to work, although I were well enough to transact business in my own bedroom, or clad in a robe de nuit instead of a professional toga.[117] For total disability from the prosecution of one’s usual employment means inability to follow one’s usual occupation, business, or pursuits in the usual way:[118] i. e., e. g., a farmer who can do nothing but milk, and a merchant who can only keep his books, are totally disabled within the meaning of such a provision as the above.[119] To be wholly or quite disabled is to be unable to do what one is called upon to do in the ordinary course of business, and this is by no means the same thing as being “unable to do any part of one’s business.”[120]
The decided cases made it clear that I could recover only for the personal expense and pain occasioned by the accident, and not damage for loss of time or of profit occasioned thereby; and also, that if I insured my life for only $1000, it could not be assumed that my life was worth only that and nothing more, and an injury sustained estimated at a proportionate sum.[121]
I also, as a result of my researches, learned the following: If a policy provided that the company would be responsible for accidents operating from external causes, I would get something if I injured my spinal marrow by lifting my trunk;[122] but it would appear that rupture caused by jumping from the cars while in motion and afterwards running to accomplish certain business, done voluntarily and in the ordinary way, and without any necessity therefor, and with no unforeseen or involuntary movement of the body, such as stumbling, or slipping, or falling, is not caused by violent or accidental means. Though it might be otherwise if in jumping I should lose my balance and fall, or strike some unseen object, or in running should stumble or slip.[123] If, while on my travels, I should take to amateur farming (not the most likely thing in the world, bucolic desires not filling my soul, and the thermometer being down below nothing), and while pitching hay let the handle of the pitchfork slip and pitch into my bowels, producing thereby peritoneal inflammation, whereof I should die, that would be an accidental death![124] Nor would the casual change of occupation from the pursuits of the forum to that of the field, forfeit my right to recover.[125] Where an accident produced hernia, which caused death, it was held that the death was not within the exception of the policy which provided that the company did not insure against death or disability arising from rheumatism, gout, hernia, etc.[126] If I should go in bathing and die from the action of the water causing asphyxia, that, too, would be a death by external violence within the meaning of the policy, whether I swam out too far, struck my head against a rock in diving, or—unskilled in the natatorial art—got out of my depth; but if I succumbed to an attack of apoplexy while taking the bath, that would not be a death from accident.[127] A provision that no claim is to be made under a policy, except in respect of an injury caused by some “outward and visible means,” applies only to non-fatal injuries.[128]
I found also, that it was legally correct—however paradoxical it may appear—to say that I was travelling in a carriage, when in fact I was actually alighting therefrom;[129] and that I would be “travelling in a carriage provided for the transportation of passengers,” if, while in the prosecution of my journey, I walked on foot, as passengers are wont to do from one station to another. The courts, ever ready to interpret a policy in the way most advantageous to the insured,[130] will not allow “travelling in a public conveyance” to be construed literally, and if an accident happens while one is getting off or on a train, or attempting to do so for any reasonable purpose, it comes within the terms of a policy insuring against accidents while travelling by public conveyance.[131] Mr. John Wilder May (who has written a large book on Insurance) thinks that, perhaps, in a reasonable and substantially accurate sense a man may be said to be travelling by public conveyance, when he is prosecuting a journey by rail or boat, whether he is sitting still in a motionless car, or standing serenely on the station-platform, or walking to and fro thereon waiting for a start, or going into a station for prog, or returning therefrom after having grubbed;[132] although Chase, C. J., held that a man who had performed the greater part of a journey by steamboat and, there being no public conveyance, proceeded on foot to his house some miles distant from the port, could not exactly be said to be a private conveyance to himself while walking.[133] An elephant may be a traveller.[134]
A poor fellow away down in Kentucky inadvertently and needlessly put his arm out of a car window and had it injured by being bumped against a post, and the court held the injury not accidental, being attributable to the person’s own negligence.[135] But as this case stands alone, it will scarcely answer to point a moral or adorn a tale, and the better opinion seems to be that contributory negligence is no defence, as the liability rests upon contract, one of the chief objects of which is to protect a man against his own carelessness or negligence.[136] But one must not be guilty of willful and wanton exposure of himself to unnecessary danger; for instance he must not ride on the engine,[137] or attempt to cross the track when an approaching train is within fifty feet.[138]
I was now assured that to be insured was sure to bring contentment, if not riches.