Petitioner, a beneficiary of a policy of accident insurance issued to her husband by respondent, brought this suit in the District Court for Northern California to recover under the double indemnity provisions of the policy. At the trial liability was conceded for the single amount stipulated to be paid in the event of the insured's death by accident, but double liability was contested on the ground that the insured, at the time of the accident, was not a passenger on a common carrier within the meaning of the double indemnity provisions of the policy. A judgment entered upon a verdict for the petitioner for the double liability was reversed by the Court of Appeals for the Ninth Circuit, which directed that judgment be reduced by one-half. 65 F.(2d) 976. Certiorari was granted, 290 U.S. 622, 54 S.Ct. 229, 78 L.Ed. --, to resolve an alleged conflict of the decision below with those in other circuits. See London Guarantee & Accident Company v. Ladd (Preferred Accident Insurance Co. of New York v. Ladd), 299 F. 562, 565 (C.C.A.6th); AEtna Life Insurance Co. v. Davis, 191 F. 343 (C.C.A.8th); Preferred Accident Insurance Co. of New York v. Muir, 126 F. 926 (C.C.A.3d); compare Fidelity & Casualty Co. of New York v. Morrison, 129 Ill.App. 360.
The policy provided for payment of a specified amount in case of loss of life of the insured resulting from accidental bodily injury, and for payment of double that amount 'if such injury is sustained by the insured (1) while a passenger in or on a public conveyance (including the platform, steps or running board thereof) provided by a common carrier for passenger service.' The insured, who had in his possession a ticket entitling him to transportation, arrived at the railroad station platform just as the train started to move out of the station. There was testimony from which the jury might have found that, while the train was moving at a speed of seven to ten miles an hour but was still within the station and opposite the platform, with vestibule doors open, the insured jumped onto the lower step of a car, his hand grasping the handrail, and that he continued for a brief time, while the train moved about twenty feet, to stand with both feet upon the step but with a small part of his body or clothing projecting beyond or outside the vestibule until it brushed against a bystander on the platform in a manner causing the insured to lose his hold and fall to his death.
The trial judge instructed the jury that if the insured held a ticket entitling him to ride as a passenger, and in attempting to board the train while in motion he stood with both feet upon the step, he was a passenger and entitled to recover under the double indemnity clause. The only question which it is necessary to decide here is whether the insured was a 'passenger' at the time of the accident within the meaning of the policy. The Court of Appeals ruled that he was not; it reached this conclusion by applying the term as it was said to be defined in the law of common carriers.
In personal injury suits against common carriers, brought by persons who, intending to be passengers, were injured while endeavoring to mount the steps of a moving train, courts have sometimes said that the implied invitation to board the train is withdrawn when it begins to move, and that the duty of the carrier to exercise a high degree of care toward its passengers does not attach in such circumstances, because one seeking to board a moving train does not become a passenger until he reaches a place of safety. Trapnell v. Hines (C.C.A.) 268 F. 504, 506; Illinois Central R. Co. v. Cotter, 103 S.W. 279, 31 Ky. Law Rep. 679; Kentucky Highlands R. Co. v. Creal, 166 Ky. 469, 179 S.W. 417, L.R.A. 1916B, 830, Ann. Cas. 1917C, 1205; Mathews v. Metropolitan Street R. Co., 156 Mo.App. 715, 137 S.W. 1003; Schepers v. Union Depot R. Co., 126 Mo. 665, 675, 29 S.W. 712; Tompkins v. Portland Ry., Light & Power Co., 77 Or. 174, 179, 150 P. 758; Palmer v. Willamette Valley Southern R. Co., 88 Or. 322, 330, 171 P. 1169, L.R.A. 1918D, 1114. The Court of Appeals thought that the evidence here would have made no case for the jury in a suit against the carrier, and therefore concluded that the trial judge should have directed a verdict for the insurer on the issue of double indemnity.