ADAMS, J.:

The policy upon which this action is brought contains the following provision, namely:

"This insurance does not cover * * * voluntary exposure to unnecessary danger; * * * nor any injury, fatal or otherwise, caused directly or indirectly (wholly or in part) * * * while violating law."

And the defendant seeks to avail itself of this provision as a means by which to escape liability upon its contract of insurance, its contention being that the death of the assured was directly attributable to his violation of the law as well as to a voluntary exposure upon his part to an unnecessary danger.

These issues which were tendered by the answer present the only questions to be considered upon this appeal, and they will be disposed of in the order in which they have been mentioned.

In support of the claim that the death of the plaintiff's husband was caused by a violation of the law, the attention of the court is directed to section 53 of the General Railroad Law (Laws of 1890, chap. 565, as amended by chap. 676 of the Laws of 1892), which provides that:

"No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same."

It is insisted that when Lehman left Sycamore street and attempted to reach the Ginsburg yard in the manner he did, he was guilty of a plain violation of this provision, which was, of itself, sufficient to defeat a recovery.

It would perhaps be an adequate answer to this contention to suggest that, up to the time the assured met his death, he had not "walked upon or along" the railroad track. He had, to be sure, come over a walk or path running along the west side of and parallel with the tracks, but it will hardly be claimed that this, of itself, constituted any violation of the statute. It is urged, however, that when struck he was in the act of stepping upon the tracks with the obvious design of crossing them in order to reach his point of destination, and this is unquestionably true; but does this fact work any change in the situation? We think not, when considered in connection with certain other facts and circumstances concerning which there is no dispute. And, in saying this, it might even be assumed that the endeavor to cross the track was equivalent to walking thereon.

It may also be noted in this connection that at the point where the decedent was intending to cross the railroad tracks were not "laid across or along" a public street or highway, but, nevertheless, it was at a place which the public had been in the habit of crossing for a long period of time; it was the customary and, practically, the only means people on foot had of reaching the works of Ginsburg Sons, and its use by the public, for this purpose, had been acquiesced in by the railroad company for a sufficient length of time for such uses to ripen into a license. The assured, therefore, had the right to avail himself of that license, and in doing so it cannot be said that he was violating the law. ( Nicholson v. Erie Railway Co., 41 N.Y. 525; Barry v. N.Y.C. H.R.R.R. Co., 92 id. 289; Byrne v. N.Y.C. H.R.R.R. Co., 104 id. 362.) Right here it is proper to bear in mind that the statute referred to forms no part of the criminal law of this State, and that no penalty is imposed, in express terms, for a violation thereof. It is simply one of the provisions of the General Railroad Act, and while in a somewhat restricted sense it may be said to have been induced by public considerations, it was undoubtedly designed, primarily, for the protection of the railroad companies, and, therefore, when they consent to the use of their tracks by the public for the purposes of a highway crossing, it would require a somewhat strained construction of the section to hold that the people availing themselves of the privilege thus afforded, became, ipso facto, criminals. ( Duncan v. Preferred Mutual Accident Assn., 13 N Y Supp. 620; affd., 129 N.Y. 622.)

We turn, therefore, to the second proposition advanced by the defendant for the purpose of determining what consideration it ought to receive, and to what extent the facts of the cases sustain the contention that the assured lost his life in consequence of his "voluntary exposure to unnecessary danger." Here, again, the court is relieved from the embarrassment which usually accompanies an attempt to review a case presenting conflicting statements of fact, for, most fortunately, there is no dispute as to the circumstances attending the accident, nor is there any reason to doubt that its one controlling cause was the carelessness of Lehman himself, but with this much conceded, the important question still remains, does this act of his, careless and heedless as it undoubtedly was, relieve the defendant from the obligation of its contract of insurance? Some authorities may be found among the earlier cases for the contention that in construing this provision of the policy, "negligence" and "voluntary exposure to unnecessary danger" must be regarded as equivalent terms. ( Sawtelle v. Railway Passenger Assurance Co., 15 Blatch. [U.S.] 216; Hoffman v. Travellers' Insurance Co., N.Y. Supreme Court, 1871, not officially reported, but discussed in 7 Am. Law Rev. 594.)

But the rule now seems to be virtually settled in most of the States that the two expressions are not necessarily, nor usually, synonymous ( Miller v. Insurance Co., 92 Tenn. 167; Hull v. Equitable Accident Assn., 41 Minn. 231; Schneider v. Provident L. Insurance Co., 24 Wis. 28; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Williams v. U.S. Mutual Accident Assn., 133 N.Y. 367; S.C., 82 Hun, 269), and the reason for this rule is stated by ALLEN, J., in Keene v. New England Mutual Accident Assn. ( 161 Mass. 149), to be that, "By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or in part from his own inadvertence."

We come, therefore, to the consideration of what is meant by a "voluntary exposure to unnecessary danger," and this involves a definition of the word "voluntary."

As we regard it, a voluntary performance of an act must require an exercise of the will of the actor. In other words, it is an act done in obedience to, and regulated by, the will of the person who does it. It follows, therefore, that it must be done designedly and not accidentally, and, consequently, one cannot be said to be guilty of a voluntary exposure to danger, unless he intentionally and consciously assumes the risk of an obvious danger. ( Miller v. Ins. Co., 92 Tenn. supra; Keene v. N.E.M. Accident Assn., 161 Mass. supra; Williams v. U.S. Mutual Accident Assn., 82 Hun, supra, and 133 N.Y. 367.) The case last cited furnishes a fair illustration of the distinction which we are seeking to draw, for there the assured, in a spirit of bravado, sat down upon a railroad track in front of an approaching engine, and while so doing was struck and killed. This was a conscious deliberate act, and was, therefore, beyond all question, one which was voluntary upon his part; but in the case at bar the facts are quite different. Lehman had occasion to cross the tracks in order to reach the point for which he started, and as he was about to consummate his purpose a train was observed by him approaching from the south upon the easterly track. He waited until the train had passed, and then, without taking the precaution to notice the train which was coming towards him from the north, upon the track next to him, he raised his foot and was immediately struck and killed. In this final act of Lehman's is found another and very apt illustration of this same distinction, for, when he saw that the train was coming from the south he became conscious of existing danger, and exerted his will in order to avoid it, but when this particular danger had passed, he unconsciously and involuntarily exposed himself to another and a greater risk, in consequence of which his life was sacrificed.

Our attention is directed to an English authority ( Cornish v. Accident Ins. Co., L.R. [23 Q.B. Div.] 453), which it is claimed is precisely in point, and ought to be decisive of this case.

The circumstances of the two cases are quite similar, it is true, but there is one very marked distinction which deprives the former of any authoritative value in our attempt to decide the latter, and that distinction lies in the difference in the language of the excepting clauses of the two policies. In the Cornish case the policy excepted from the risks insured against accidents happening "by exposure of the insured to obvious risk of injury;" but in this case only those which occur by reason of "voluntary exposure to unnecessary danger." We have attempted to show what is intended by the latter term, and if we are correct in the views expressed, its meaning is quite different from "exposure to obvious risk." If that had been the language of the policy in suit, the defendant might, with more reason, claim that it was relieved from liability, for the risk or danger which confronted Lehman was an obvious one, whether he observed it or not; and by exposing himself to it, whether voluntarily or involuntarily, his case would have been brought within the letter and possibly within the spirit of the provision upon which the defendant relies.

These considerations lead to the conclusion that no error was committed by the trial court in its direction of a verdict in favor of the plaintiff, and that consequently the judgment and order appealed from should be affirmed.

All concurred.

Judgment and order affirmed, with costs.