and he might have been directly sued by one of them, so that he was in no way injured by the payment of the note by plaintiff. The act may have been ultra vires, but the stockholders, the state, and in some instances the creditors, are the parties entitled to raise the issue, and not a stranger to the transaction. 3 Thompson on Corporations (2d Ed. 1909) § 2852. It is to the credit of the plaintiff in this case that it made no attempt to evade its agreement as indorser, and we see no reason why the defendant should be permitted to insist that it be penalized for maintaining its commercial honor. Payment of the note amounted to a repurchase of it, and we think the plaintiff was entitled to all the rights of an indorser, which included, of course, the right to recover from a prior indorser.

The judgment is affirmed.

(256 Pa. 1)

KELLEY v. PITTSBURGH CASUALTY CO.

(Supreme Court of Pennsylvania. Jan. 8, 1917.) INSURANCE 668(11)—ACCIDENT INSURANCE

"Total disability, $25.00 per week; partial disability, $12.50 per week."

There is no clause in the policy either limiting or negativing the liability to any person for indemnity or benefits for injuries in case such injuries shall occur as the result wholly or partially, directly or indirectly, of any disease, bodily or mental infirmity, other than above quoted.

The question for decision in this motion is this: Does the evidence introduced in this case show, or is it sufficient to sustain the finding of the jury, that the plaintiff, Eugene A. Kelley, "sustained loss or disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through accidental means"?

At the trial the defendant requested the court to charge as follows: "Under all the evidence your verdict must be for the defendant." The court refused this request, and held that the question under the testimony was one which -QUESTION FOR JURY. should be decided by the jury under the instrucIn an action on an accident insurance policy tions which the court gave them. The defendinsuring "against loss or disability resulting di- ant's counsel maintain that the court erred in rerectly, independently and exclusively of all oth-fusing this point, and that that error should now er causes, from bodily injuries effected solely be corrected by the court entering judgment notthrough accidental means," where it appeared withstanding the verdict of the jury in favor of that plaintiff had twisted his body while endeav- the plaintiff. oring to avoid a fall on icy ground, thereby straining or tearing his intestines at a point where they adhered to the wall of the abdominal cavity so that an operation was rendered necessary, it was for the jury to determine whether his disability was caused by the accident, where there was medical testimony that but for the accident he would not have been inconvenienced by the adhesions, and a verdict and judgment for plaintiff were sustained.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1745, 1763, 1764.]

Appeal from Court of Common Pleas, Washington County.

Action by Eugene A. Kelley against the Pittsburgh Casualty Company, James B. Haines, Jr., and others, trustees. Verdict for plaintiff for $3,650 and judgment thereon, motion for judgment non obstante veredicto overruled, and first-named defendant appeals. Affirmed.

McIlvaine, P. J., filed the following opinion in the court of common pleas sur defendant's motion for judgment n. o. v.:

This was a suit on an accident insurance policy. The indemnity provided for in the policy was "against loss or disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through accidental means-suicide while sane or insane or any attempt thereat is not covered-as provided in the following sections:

"Section 1. If any of the losses stated in the following schedule result directly and independently of all other causes and within four years from date of accident from bodily injury as above defined, while this policy is in force, the company will pay the sum set opposite such loss. * * *

2, 1910, the plaintiff slipped in walking on steep There is no serious dispute that on December and icy ground and almost fell, that in righting himself he twisted his body in the region of the abdomen, and that a few hours after this twisting of his body he suffered severe pain in his abdomen. On December 5th an operation was performed, and it was discovered that there were adhesions of his bowels to the wall of the abdominal cavity and at the point of adhesion inflammation had set in, so that pus was about to be formed; and it further appeared in the testiber of months after this operation was performmony that the plaintiff was disabled for a numed. Three physicians who participated in the operation testified to these adhesions of the bowels to the wall of the abdominal cavity, and also testified that in their opinion the inflammation which they discovered and the pus that was about to be formed were the result of a tearing or straining of the tissues at the point where the bowels adhered to the wall of the abdominal cavity, and that the disability which the plaintiff underwent was the result of the twisting of his body in the region of the abdomen when he acfrom the 1st of November until the 2d of Decidentally slipped and almost fell. The plaintiff cember had been in good health, had been attending to his duties as secretary of the Beaver Refining Company, and it was the opinion of the physicians that the adhesions of the bowels to the wall of the abdominal cavity were of such a character, as they discovered them, as not to have given the plaintiff any inconvenience in the performance of his work had not there been a tearing or stretching of the tissues at the point of adhesion when he accidentally slipped, and that the necessity for the operation that they performed and the consequent disability of the plaintiff resulted directly, independently and exclusively of all other causes, from the accidental slip and the wrenching of his body.

The defendant in this case set up first that the

plaintiff some months before December 2, 1910, had had an operation for appendicitis, and that he was afflicted at the time he was convalescent from that first operation with phlebitis, and that the inflamed condition which the plaintiff's physicians discovered at the time of the operation of December 5th was the result, at least in part, of the previous operation and the conditions which were brought about by and following that first operation. The question was left to the determination of the jury, the court impressing upon the jury its opinion that the plaintiff could not recover unless the testimony showed to their satisfaction that the slipping of the plaintiff as described by him was the sole, efficient cause of the plaintiff's disability.

The defendant's counsel at the argument of this motion contended that under the contract of insurance in this case the doctrine of remote and proximate cause, the doctrine of active and passive cause, or the doctrine of efficient and proximate cause have no application in this case, and that this court should have instructed the jury to find for the defendant because of the fact that the evidence showed that the plaintiff had an adhesion of the bowels to the wall of the abdominal cavity on December 2, 1910, and that this accidental injury would not and could not have been sustained had he been free from bowel adhesions and a normal man; or, in other words, they claim that the adhesion of the bowels to the wall of the abdominal cavity was a cause which contributed to the injury which the plaintiff sustained, and that therefore he cannot re

cover.

*

"death," by an extract from 5 Ann. Cas. pp. 86,
87, which is as follows: "If disease, while exist-
ing, be but a condition, and the accident the
moving, sole, and proximate cause of the death,
the exception in the policy will not relieve the
insurer for death so caused. Thus it has been
said that, if an insured should suffer death by
drowning, no matter what the cause of his fall-
ing into the water, whether disease or slipping,
the drowning in such case would be the proxi-
mate and sole cause of the death, unless it ap-
peared that death would have been the result,
even had there been no water at hand.
So it seems death due to chronic alcoholism and
a broken limb is not within the exception, if the
proximate cause of death is the accident and re-
sulting injury. *** Death due to a fall
caused by a sudden ailment or disorder is not the
result of disease within the meaning of an excep-
tion in a policy; the fall being the sole and
proximate cause of death.
* The same
is true in case of death caused by a fall ruptur-
ing an artery weakened by a tumor.'
In Fidelity & Casualty Company v. Meyer, re-
ported in 106 Ark. 91, 152 S. W. 995, 44 L.
R. A. (N. S.) 493, the insurance company under-
took to insure "against bodily injuries sustain-
ed through accidental means, resulting directly,
independently, and exclusively of all other caus-
es in death.' The Supreme Court of Arkansas
held that the excitation by an accident of a
dormant growth or formation in the body so
that it rapidly resulted in death, which but for
the accident would have been deferred until a
later period in life, is within the operation of a
policy insuring against bodily injury sustained
through accidental means, resulting directly, in-
dependently, and exclusively of all other causes
in death. We quote in part from the opinion of
the Chief Justice, at page 497: ""The fact that
the physical infirmity of the victim may be a
necessary condition to the result does not de-
prive the injury of its distinction as the sole
In such case disease or low
producing cause.

* *

In this contention we think the defendant errs. It may be admitted-indeed it must be admitted in this case-that the plaintiff had adhesions of the bowels to the wall of the abdominal cavity; and it may be admitted, and I think must be under the testimony even of the plaintiff's physicians, that if those adhesions had not existed, the accident to the plaintiff would not have had any serious results; or, in other words, that the strain would not have had a point in his vitality do not arise to the dignity of concuranatomy on which to operate, as the bowels ring causes, but, in having deprived nature of would have been free to move, and there would her normal power of resistance to attack, aphave been no point of strain or consequent in- pear rather as the passive allies of the agencies flammation. We think the defendant's counsel set in motion by the injury.' Where confound this case with a class of cases in which accidental injury aggravated a disease, and the policy provides that there shall be no lia- thereby hastened death so as to cause it to ocbility to any person for injuries where such in- cur at an earlier period than it would have ocjuries result wholly or partially from disease curred but for the accident, it is the direct, inor bodily infirmity. In the case at bar the only dependent, and exclusive cause of death at that exception that is made is in these words: "Sui- time. The phrase 'resulting directly, cide while sane or insane or any attempt thereat independently, and exclusively in death' refers is not covered by this policy." But we have dis- to the efficient, or, as some courts speak of it, covered no clause in the policy limiting liability the predominant, cause of death at the time it on account of disease or bodily infirmities of occurs. In other words, it means the proximate the insured; or, in other words, this policy does cause. *It must be remembered that the not limit the recovery of indemnity for injuries policy is couched in language chosen by the inaccidentally sustained solely to those who are surer, and must be given the construction, of bodily sound and truly normal men in the sense which it is susceptible, most favorable to the asthat they have no bodily defects. We held at sured. Moreover, it is the duty of the trial, and think properly, that if the ad- courts to give such construction to a policy, if hesions of the bowels to the abdominal wall the language used fairly admits, as will make were of such a character that they did not incon-it of some substantial value and carry out the venience the plaintiff in the performance of his intention expressed therein that liability is indaily tasks, and they were what we might call curred where death occurs from accidental inhealthy adhesions, such as might have continued jury. If liability is to depend upon the physical to exist for years without even the knowledge condition of the assured as contributing in some of the plaintiff and without any inconvenience to degree to death, then it should be so stated him and without in any way disabling him from plainly in the policy. We are of the opinion performing his daily tasks, and that the in- that the language of this policy does not mean flammation and condition found by the physi- that there shall be no liability in case death recians when his body was opened was the direct sults from the aggravation of a pre-existing disresult of the straining, and no other cause contributed to that inflammation and condition they found, other than the straining or stretching of of the tissue, then the plaintiff was entitled to recover; and the jury have found, and the testimony of the physicians justified that finding, that the straining which resulted from the accidental slip was the sole and efficient cause of the plaintiff's injury and his consequent disability. Our position at the trial may be well defined, substituting the word "disability" for the word

ease.

99

The principle enunciated in this opinion we endeavored to impress upon the jury, and to illustrate the working of that principle we instanced a person who had lost his sight by an accidental injury to the eye, that eye being previously in a weakened condition by the presence of a cancerous growth, and said to the jury that it was a question of fact for the jury to determine whether the physical injury to the eye was the sole and efficient cause of the destruction of sight,

W. R. Murphy, James A. Wakefield, and McIlvain, Murphy, Day & Witherspoon, all of Pittsburgh, and J. B. Boyer, of Washington, Pa., for appellant. T. Jeff Duncan, Duncan, Chalfant & Warne, O. S. Chalfant, Boyd E. Warne, Acheson & Crumrine, C. L. V. Acheson, and J. Boyd Crumrine, all of Wash-court for failing to restore plaintiff to his ington, Pa., for appellee.

PER CURIAM. This appeal is groundless. The appellant would open litigation long since ended. Even if there were any merit in his appeal it would have to be quashed, for his assignments of error are in disregard of our rules, and meaningless. Appeal quashed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

HAMBLY ▼. BAY STATE ST. RY. CO. (No. 4980.)

(Supreme Court of Rhode Island. April 20,

1917.)

The case is before us upon the plaintiff's exception to said ruling of the justice.

It appears that the track of the defendant's railway in the town of Tiverton runs in the highway practically north and south

1. STREET RAILROADS 99(11)—OPERATION- in front of the premises of one Barker, which DUTIES OF TRAVELERS.

It was the duty of an automobile driver, before attempting to cross the track of a street railroad which was obscured from the road by bushes along a driveway through which he was approaching, to look both ways along the track for an approaching car in the exercise of due

care.

law.

is situated on the west side of the highway; that along the north line of said Barker estate there is a driveway running east and west from the house on said estate to the highway; that there are high bushes along the north line of said estate; that at the time of the accident said bushes prevented a view of the driveway from electric cars on the defendant's track approaching said estate from the north, and also prevented a view of said cars from the driveway; that the distance from the gateway at the easterly end of said driveway to the track of the defendant is 9 feet; that from a position on said highway immediately in front of the gateway there is an unobstructed view of the

[Ed. Note.-For other cases, see Street Rail- defendant's track for 100 feet to the north. roads, Cent. Dig. § 215.]

The evidence showed that the plaintiff conducted a grocery business in the town of Tiverton; that he lived near the place of the accident, and was well acquainted with the locality and the operation of the defendant's cars. On the day of the accident, the plaintiff was driving an automobile and had in the course of his business gone along said driveway to the Barker residence to deliver goods. Just prior to the accident, he was returning along said driveway to the highway proceeding at the rate of 4 miles an hour. The plaintiff testified that, when he had passed out through the gateway, he look

[Ed. Note. For other cases, see Street Rail-ed to the north along the defendant's track roads, Cent. Dig. § 219.]

5. STREET RAILROADS 114(15)-OPERATIONCROSSING ACCIDENTS - CONTRIBUTORY NEG

LIGENCE.

Evidence held to show that injuries to an automobile driver by a car at a highway crossing were the result of his own contributory negligence.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 248, 250.]

Exceptions from Superior Court, Newport County; John Doran, Judge.

Action by George C. Hambly against the Bay State Street Railway Company. On plaintiff's exceptions to direction of verdict for defendant. Exceptions overruled, and case remitted to superior court.

Burdick & MacLeod, of Newport, for plaintiff. Sheffield & Harvey, of Newport, for defendant.

and saw no car of the defendant approaching from that direction, and that then he proceeded at the same rate of 4 miles an hour to the track of the defendant; that when the front part of his automobile had passed onto said track it was struck by a car of the defendant approaching from the north and he was injured. The evidence as to the rate of speed of said car of the defendant just before striking the plaintiff's automobile is conflicting. The highest estimate of said rate of speed given by the witnesses is that of from 25 to 30 miles an hour.

[1, 2] Before attempting to cross the track of the defendant, it was the duty of the plaintiff in the exercise of ordinary care to look both ways along the defendant's track for an approaching car. If he had done so, in the circumstances of the case, he could not have failed to see the electric car ap

been apparent to him that he did not have the right of way and that he could not with safety drive upon the track. It therefore appears from the testimony that as a matter of law the plaintiff was guilty of contributory

PER CURIAM. This is an action of tres-proaching from the north, and it would have pass on the case to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant. The case was tried before a justice of the superior court sitting with a jury. At the end of the testimony said jus- negligence. tice directed a verdict for the defendant. [3-5] The plaintiff contends that, notwithFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PER CURIAM. This is an action of tres pass on the case, brought to recover damages

standing his own conduct, the case should have been submitted to the jury upon the question of the negligence of the defendant's for injury to the plaintiff, alleged to have motorman in failing to stop his car and thus been caused by the negligence of the deavert the accident when the peril of the fendant. The case was tried before a justice plaintiff should have been apparent to said of the superior court sitting with a jury, and motorman. According to the uncontradicted resulted in a verdict for the plaintiff for evidence, as soon as the front of the plain- $4,000. The defendant's motion for a new tiff's automobile came through the gateway, trial was denied by said justice. The case said motorman at once reversed the power is before us upon the defendant's exception upon his car and did what he could to prevent the collision. Further, it plainly appears that in the circumstances said motorman should not be held guilty of negligence in failing to stop the electric car before it struck the automobile of the plaintiff, in view of the period of time within which the motorman was called upon to act, and the distance which the electric car was from the place of collision when the plaintiff first passed out of the driveway and came within the range of vision of the motorman. In our opinion the only reasonable view that can be taken of the matter is that the plaintiff's own negligence was the proximate, and the sole, cause of the accident.

The plaintiff's exception is overruled; the case is remitted to the superior court for the entry of judgment on the verdict.

(40 R. I. 264)

COLTON v. RHODE ISLAND CO.
(No. 4967.)

to the decision of said justice upon the motion for a new trial, and upon the defendant's exceptions to certain rulings of said justice, made in the course of said trial. The defendant insists most strongly upon its exception to the refusal of said justice to grant a new trial.

It appears from the testimony that at the time of the alleged accident the plaintiff was a passenger upon one of the open cars of the defendant. She was seated at the end of one of the seats. Said seat was of the type ordinarily used in open electric cars. It had a reversible back, the main portion of which was constructed of wood, and had a curved metal hanger or arm piece attached to each end. Through the end of each of said metal hangers was placed a screw bolt, which was screwed into a stanchion at the side of the car. These bolts, so placed at either end, served to hold the back of the seat in place, and on said bolts the back was turned when it was reversed. While the plaintiff was riding upon the defendant's car as aforesaid

(Supreme Court of Rhode Island. April 18, other passengers were seated upon the seat

1917.)

Where plaintiff was struck by falling seat in an open street car, and was severely injured, suffering much pain and discomfort, and rendered incapable of attending to her usual occupation, and had lost a considerable sum in wages, a verdict of $4,000 was not excessive.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 357, 363, 364, 366, 370.]

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Action by Kathryn Colton against the Rhode Island Company. On defendant's exceptions to judgment for plaintiff. Exceptions overruled, and case remitted to superior court.

Philip S. Knauer, of Providence (Walter J. Ladd, of Providence, of counsel), for plaintiff. Clifford Whipple and Alonzo R. Williams, both of Providence, for defendant.

next in front of the plaintiff. In some manner, which is not explained, the bolt, which had attached the end of the back of said

seat, immediately in front of the plaintiff, to a stanchion of the car, became displaced, and said end of the back fell from its proper position and struck the plaintiff a glancing blow upon the inner side of her left knee, inflicting a very serious injury upon the plaintiff, as she claims.

From the evidence it appears that the plaintiff was in the exercise of due care at the time of the accident. The injury to the plaintiff was caused by the displacement of the bolt, which was wholly under the control of the defendant. In Murray v. Pawtuxet Valley Street Ry. Co., 25 R. I. 209, 55 Atl. 491, this court held:

"Res ipsa loquitur is the maxim applicable to cases where the cause of injuries to passengers arises from the breaking down of apparatus wholly under the control of the common carrier. 'It is a presumption raised by the law on grounds of public policy, which makes out a prima facie case against the carrier, unless it is rebutted to the satisfaction of the jury.'"

The defendant in the case at bar seeks to rebut the presumption of negligence by showing a reasonable and proper inspection on its part of the car and the bolt in question. From the testimony of witnesses for the defendant as well as of those for the plaintiff,