Sargent v. Central Accident Insurance ( 1901 )

Dodge, J.

The circumstances of plaintiff’s injury are established wholly by his OAvn testimony and statements. He was hunting, with two companions, who were on the other side of a fence and not in sight of him. Desiring to join them, he leaned his gun against the fence, and climbed over. His testimony in chief as to the accident was in the following words: “I went to get over the fence, and put my gun up by the fence, and after I got over the fence the accident happened. How it occurred, I don’t know. I must have reached for the gun. . . . My right hand was shot off at the wrist.” On cross-examination he said, “ I had no idea how I got hold of the gun, or how it happened at all.” In his notice and proofs of loss he makes the statement, “ I had just climbed over a fence, and in reaching for my gun it accidentally discharged, the shot entering my right wrist,” requiring the amputation of the right hand. It appeared without contradiction that the gun was at full cock before its discharge.

The force and effect of the clause in the policy excepting the defendant from liability for injuries due to unnecessary exposure to danger has received authoritative construction in this court in Shevlin v. Am. M. A. Asso. 94 Wis. 180, where it is held to be satisfied by the same acts that would constitute contributory negligence, and a distinction is drawn between the expression present in this policy and the expression a “ voluntary or wilful exposure to unnecessary danger,” the latter being construed to describe gross negligence, in the sense of a conscious exposure to a known peril. Applying the law of this case to the facts disclosed by the plaintiff’s own uncontradicted and unqualified description of the event, there is no room for difference of opinion as to what transpired, nor for different inferences therefrom as to the existence of that negligence which constitutes an unnecessary exposure to danger. From the accident itself there can, of course, be no doubt that plaintiff placed his wrist in front of the muzzle of his gun, loaded and cocked, as- he reached for it to draw it towards him through the fence. This was, of course, unnecessary. It is always possible, if one must draw a loaded gun through a fence, to refrain from placing any portion of bis person in front of the muzzle. Such exposure is of itself negligence of the most obviously inexcusable kind; not the conduct which the uniform experience of mankind teaches may be expected from the man of ordinary prudence. Whether, indeed, there might be circumstances of excitement, haste, or other peril so imminent and engrossing as to force one’s attention away from the danger incurred by conduct like the plaintiff’s is a question analogous to that discussed in some of the railroad crossing cases (Guhl v. Whitcomb, 109 Wis. 69, 74), but one which need not be considered here, as none of such circumstances are suggested to have been present. The finding of the circuit court that plaintiff’s injury did not result from unnecessary exposure to danger is not only antagonized by the great preponderance of the testimony; it is conclusively negatived by all the testimony and the only reasonable inference therefrom. It must, therefore, be set aside,.and a contrary finding on that subject substituted for it.

Other questions passed upon by the court below and argued before us are by the foregoing conclusion rendered wholly immaterial. Judgment for the defendant necessarily results from the foregoing change in the findings.

By the Gov/rt. — Judgment reversed, and cause remanded with directions to render judgment for the defendant.