Traphagen v. Fidelity & Casualty Co.

The burthen of proof was upon the defendant to show that the insured came to his death from causes against which he was not insured. It is indeed a question whether the plaintiff was not entitled to judgment upon the pleadings, after having put in his formal proof, but the case was submitted to the jury under an exceptionable charge, and they have found for the plaintiff.

It was a question peculiarly within the province of a jury to determine, as the evidence was such that honest minds might differ as to the inferences to be drawn from it. The evidence seems to rebut any conclusion that Crist committed suicide. His conduct immediately before the accident is inconsistent with any such theory. It is possible he might have attempted to board the car while in motion and the evidence is consistent with such a theory, but the burthen was upon the defendant, and we cannot say the jury was not justified in finding that the defendant railed to make that defense.

The proof amply sustains a finding that the death was accidental, and the defendant failed to establish _ any other cause against which plaintiff’s intestate was not insured.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.