ERROR to the Circuit Court for the District of Vermont.
Mrs. Elizabeth Seaver sued the Travellers' Insurance Company of Hartford on a policy of insurance, which insured her against loss of life of her husband-described in the policy as a livery-stable keeper-caused by any accident within the meaning of the policy and conditions thereto annexed. Among these conditions was one that the insurance should 'not extend to death or injury caused by duelling or fighting, or other breach of the law on the part of the assured, . . . or by his wilfully exposing himself to any unnecessary danger or peril.' Seaver, the husband, was killed suddenly at Morrisville, Vermont, immediately after jumping from a sulky, in which he was driving in a match race, on the event of which a considerable sum of money was wagered. The defence of the company, as the case was submitted to the jury, was, that his death was caused by a breach of the law, and by his wilfully exposing himself to unnecessary danger.
The plaintiff's evidence, as the bill of exceptions showed, tended to prove that at the race Seaver was driving a mare and sulky; that one Gilmore was driving a horse and sulky in competition alongside; that the track was 'in form like the link of a chain,' in other words was an oval track; and that soon after leaving the judge's stand, Seaver having the inside track, and his mare and Gilmore's horse being nearly abreast, Seaver's mare broke and fell back, and that Gilmore's horse got a little abead; that Gilmore thereupon reined in towards the inside track, apparently to get the inside track-his team being then about half its length ahead of Seaver's mare-that Seaver's mare at that moment regained her speed, and, gaining on the other horse, the sulkies came into collision. That the wheel of Seaver passed over the near wheel of Gilmore, and that Seaver instantly jumped from his sulky, and struck upon the grass-ground off the track, upon his feet, uninjured, some two or three feet from his sulky, and entirely free from it; that if he had remained standing where he struck, he would have received no injury; that he instantly spoke to his mare, and that the mare slackened her speed, and that Seaver started to catch her, and, with that purpose, ran a distance of some twenty feet by her side, trying to get hold of the reins to stop her; that the reins were hanging loosely across the axletree of the carriage; that when Seaver ran the distance as aforesaid, and while thus running with one hand either ahold of or grasping for the reins, the mare turned in upon the grass-ground and towards Seaver, throwing him down, when in some way he became entangled in the reins, and was dragged along a few feet until his head struck a stone with great force; that Seaver was immediately taken up insensible and carried into the house, and that he died the next morning from the injury.
The plaintiff's evidence further tended to show that by the rules of the trotting course Gilmore had not the right to attempt to take the inside track until he had passed Seaver a distance equal to the whole length of Seaver's team.
The defendant gave in evidence section nine of chapter cxix of the General Statutes of Vermont, which was as follows:
'All racing, running, trotting, or pacing of any horse or horse kind for any bet or wager of money or other valuable thing, or for any purse or stake made, is hereby declared a misdemeanor, and the parties, contrivers, aiders and abettors thereof, shall pay a fine not exceeding $500.'
The court charged as follows:
'That, for the purposes of this trial, the jury were to regard the trotting race in which the insured was engaged when he jumped from his sulky and was killed, as a breach of the law within the meaning of the conditions of the policy.
'That the jury were, therefore, to inquire whether the death of the insured was occasioned by the breach of the law; that this was a question for the jury.
'That if the jury should find that Seaver was killed by the race itself, by an ordinary accident of the race, so that the race was the proximate cause of the death, the plaintiff could not recover; but if the jury should find that Gilmore turned his horse intentionally and tortiously, with the purpose of winning the race at all hazards, whether he should crowd Seaver from the track or not, then that the conduct of Gilmore and not the race would be the proximate cause of the death, and the plaintiff would be entitled to recover.