Huston v. Traveler's Insurance ( 1902 )

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.