Peters v. Lusk et al.

and where testimony of defendants' witnesses is contradicted it must (for the purpose of considering the demurrer) be taken as false. In addition thereto we must allow plaintiff the benefit of any reasonable inference of fact arising on all the proof. [Fritz & Groh v. Railroad, 243 Mo. 1. c. 77, 148 S. W. 74. Stauffer v. Railroad, 243 Mo. 1. c. 316, 147 S. W. 1032; Williams v. Railroad, 257 Mo. 87, 165 S. W. 788.]

After much effort expended in studying the facts as presented by the record in this case and even though it were conceded that the defendants were negligent in running the train at a high rate of speed at the time and place of the accident and were also negligent in failing to sound the whistle or ring the bell, we are constrained to hold that the contributory negligence of William O. Peters, deceased, bars a recovery in this case.

One of plaintiff's witnesses saw the deceased standing at the southwest corner of the new station building when said witness and some friends were walking up the street toward the said building and were about 200 to 250 feet from it. At that time, according to their testimony, their attention was called to the approach of the train by seeing the headlight. According to one of the witnesses the train was then 350 to 450 yards east of the new station, while according to another of plaintiff's witnesses the train was just coming off the curve onto the straight track about a quarter of a mile east of the new station building. One of plaintiff's witnesses testified that "when we were south of the new depot building we could see the rays of the headlight between the two stations from where we were at the time" (italics ours), and this witness and several others were "at the time" 200 feet south of the new station building.

The ground between the two stations through which the main tracks as well as two or more side or switch tracks were laid, was a level cinder surface. The distance between the front (north) line of the new station building and the nearest (south) rail of the main tracks,

Peters v. Lusk et al.

according to plaintiff's witnesses, was fifteen to twenty feet. A person crossing from the new station building to the old station, upon getting on a line with the north front of the new depot building could see the tracks down towards the east and when five feet north of that line of the new depot "he certainly could see to the curve," and "if he got within five feet of the Frisco tracks, coming from the south and looking toward the east, he could see at least the break in the curve and possibly farther. After you clear the obstruction of the new depot and approach nearer the tracks there is no further permanent obstruction to prevent a man from seeing toward the east down the tracks near the curve."

Thus Peters, the deceased, according to the testimony of his own witnesses, was seen standing at the southwest corner of the new building at the same time when these same witnesses who saw him testified they saw the rays from the electric pilot light of the engine shining between the old depot and the new station house. Considering only the testimony favorable to plaintiff, what Peters did from that moment on until he met his death a few seconds later we do not know. Certain it is however that in that brief interval he got upon the main tracks of the railroad. To have done so the deceased must in some manner have passed through the open space from the north line of the new station house to the south rail of the main track (a distance of fifteen to twenty feet) before he came into actual danger, and yet while traversing that distance, by the most casual glance to the east, if the testimony of his own witnesses is to be believed, he could have seen the rays of light from the headlight of the approaching locomotive streaming down the tracks and between the two depots, and each step that he took which brought him closer to the nearest rail of the main tracks also brought within his view the tracks to the east for a greater distance.

Though we invoke the station grounds doctrine as laid down in Neierhoff v. United Railways Co., 186

Peters v. Lusk et al.

Mo. App. 567, 172 S. W. 402, that as to a passenger and even an invitee "the rule with respect to contributory negligence, though not absolved, is relaxed, in a measure, in order to effectuate the ends of justice in keeping with the intendant facts and circumstances,” yet in view of the facts and circumstances in this case we must hold the deceased was guilty of contributory negligence, for to do otherwise would be to hold the railroad company to be an insurer of the safety of an invitee and at the same time to absolve the invitee from exercising any degree of care whatsoever to look out for his own safety. We must rule that even though the deceased was an invitee and upon station grounds, it was nevertheless, under all the facts and circumstances in this case, the duty of the deceased to look for an approaching train after he got into the clearing between the two station buildings and before passing onto the main track. And as was said in the case of Vandeventer v. Railroad (Mo.), 177 S. W. 834, (a case much similiar to the one before us in that the deceased was killed on station grounds though that point was not raised in the case) "that which the deceased could have learned by the exercise of ordinary care under the circumstances will be imputed to him as a known fact."

Viewing the facts as disclosed by this record as we do, the deceased, at the time and place of the accident, was guilty of negligence directly contributing to his death. It follows that the peremptory instruction to find for the defendants, asked at the conclusion of the entire case, should have been given. [Vandeventer v. Railroad Co., supra., and cases cited.] The judgment is reversed. Reynolds, P. J., and Allen, J., concur.

Redd & Thompson v. Am. Cent. Life Ins. Co.

HARRY T. REDD and BELLE THOMPSON, Respondents, v. AMERICAN CENTRAL LIFE INSURANCE COMPANY, Appellant

Kansas City Court of Appeals, December 2, 1918.

1. LIFE INSURANCE: Active Service in Army: Permission to Enter Service. Because an application for an insurance policy provides that active service in the army in time of war shall invalidate the contract unless a permit be given, and the policy provides that death in service in war without permission the full reserve only shall be paid, does not bar full recovery on such policy in the event of the death of the insured while in a military training camp thousands of miles from the scene of hostilities, for the reason that the insured while thus engaged was not in "active service" in the army.

2.

3.

:

-: Definition of. "Active service" in a military sense means the performance of duty against an enemy or operations carried on in his presence in time of war and one in a training camp in this country during the war in Europe was not engaged in "active service" as thus defined.

-: Application for. An application for a policy of life insurance must be construed most favorably to the insured.

Appeal from Cooper Circuit Court.-Hon. Jack G. Slate, Judge.

AFFIRMED.

George F. Longan and B. B. Welliver for appellant.

W. W. Kingsbury and Roy D. Williams for respondents.

BLAND, J.-Plaintiffs were beneficiaries under a policy of life insurance written upon the life of Roy W. Redd. The application for the insurance provided,

"That active service in the army or navy, in time of war, shall invalidate said contract of insurance, unless a permit for such service shall have been applied

Redd & Thompson v. Am. Cent. Life Ins. Co.

for in writing and endorsed upon the policy by the Company, and such extra premium paid therefor upon notification as the then Rules of the Company may provide."

The policy provided.

"In case of death from service in war without permission from the Company, the full reserve for this policy at the time of such death only will be paid.'

The agreed statement of facts recites,

"That insured enlisted in time of war on November 28, 1917, at Jefferson Barracks, Missouri, as private, Medical Department, Section 3, Medical Officer's Training Camp, unassigned, for the term of "The Emergency;" that he was registered under the Selective Service Law in Blackwater, Cooper County, Missouri, that thereafter he was sent by the military authorities to Camp Funston, Ft. Riley, Kansas, where he died of pneumonia, while in service as aforesaid."

No permission was given the insured by the defendant to enter military service. Other than this policy of insurance the insured had ten thousand dollar War Risk insurance with the United States Government.

Defendant tendered to plaintiffs the full reserve for the policy at the time of the insured's death but plaintiffs refused the same. The court entered judgment in favor of plaintiffs for the face value of the policy, and defendant has appealed.

It is defendant's contention that the insurance was void, except as to the reserve, for the reason that the insured, as defendant claims, entered active service in the army in time of war without its permission. A determination of what active service means in a military sense disposes of this case.

Defendant does not seem to draw any distinction between service in the army and active service therein. We believe that one has entered the service of the army when he has passed the examinations, taken the oath, been enrolled and has subjected himself to the orders of the military. [See Welts v. Ins. Co., 48 N. Y. 34.]