Flyzik v. Travelers Insurance

(dissenting) — The complaint described the injury to Mr. Flyzik in the following language:

“ . . . that said Martin J. Flyzik while carrying a small receptacle lost his footing and fell, striking his fore head and face upon the edge of an ash can that was in front of him, and that said fall and resultant blow upon the head was the proximate cause of the death of the insured.”

It will be noted that no mention was made of any injury to his neck. A reading of the evidence discloses the fact that the first and only reference to a broken neck was that given by Dr. Smith in answer to the hypothetical…