Plaintiff appeals from a judgment entered on a directed verdict after dismissal of the complaint on motion of the defendant.
This was an action to recover double indemnity benefits under two policies of life insurance issued to the deceased husband of the plaintiff beneficiary.
The defendant rested at the conclusion of the plaintiff’s case without offering any proof. The medical testimony therefore is uncontradicted. In this posture of the case there is a simple *184question whether there was sufficient evidence to warrant submission of the case to the jury.
There was medical testimony that the deceased, age 65, was in normal health prior to the operation for removal of his gall bladder. The operation was completed apparently without incident. Thereafter complications developed, initially mistakenly diagnosed as a paralytic ileus which is a malfunction of the intestine due to the reaction of the body to the operation or to the anesthesia.
Six or seven days later when it became apparent that the condition was not a paralytic ileus the patient was X-rayed. The X ray disclosed “ an intestinal obstruction due to a kinking of the bowel ”, which caused an insufficiency of the kidneys. This kink was “ caused by adhesions to the site of his previous operation, that is, the site in the liver bed from which his gall bladder was removed ”. An operation was performed and the kink removed. The obstruction however had caused irreversible damage to the kidneys and the patient died seven days later of uremic poisoning. An autopsy disclosed that new adhesions had formed again in the same area.
This adhesion for which an operation was performed was caused by the fact that the small intestine had moved or “ slipped ” about four inches from its normal position.
The testimony was that a paralytic ileus was not unusual following an operation for the removal of a gall bladder, but that paralytic ileus “is a reversible thing,” in other words “ [i]n a few days, the intestine regains its activity ” and “ one does not have to do anything about it.” In fact, one year earlier after an operation to correct a prostate condition, the deceased suffered a paralytic ileus, which later corrected itself. The testimony was that adhesions may follow any operation. The treating physician who was present at the gall bladder operation, described the condition which developed here as “ an unexpected occurrence,” “ a very unusual thing.”
The operating surgeon whose qualifications were not questioned, testified to having performed some 2,000 gall bladder operations and that he had never before encountered such a condition. He asserted there was no way of determining before the operation if such would happen and that it was “ unique There was some explanation offered why this obstruction being mechanical rather than functional was considered a rare occurrence.
The pathologist testified that he did not remember ever seeing an obstruction of the type found on the deceased when the autopsy was performed.
*185The medical witnesses agreed that the result was neither designed, intended nor could it be reasonably foreseen.
Under New York law there is no distinction made between death occurring by accidental means and accidental death nor between accidental means and accidental results. (Mansbacher v. Prudential Ins. Co. of America, 273 N. Y. 140; Burr v. Commercial Travelers Mut. Acc. Assn., 295 N. Y. 294.) The test to be applied by the courts as to the meaning of the term “ accident ”, “ must be that of the average man [* * #] the one that is applied in the common speech of men ” (cases cited). “ Here, as elsewhere, the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions.” (Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18, 21-22.)
Unexpected consequences following an act intentionally or normally done may constitute accidental means. (Gallagher v. Fidelity & Cas. Co. of N. Y., 163 App. Div. 556, affd. 221 N. Y. 664 [sunstroke]; Burch v. Prudential Ins. Co. of America, 250 App. Div. 450 [asphyxiation].) “ Whether or not the means is accidental is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and probable consequences.” (6 Cooley, Briefs on Insurance [2d ed.], p. 5234; Burr v. Commercial Travelers Mut. Acc. Assn., supra, p. 302; cf. Paul v. Traveler’s Ins. Co., 112 N. Y. 472.)
A hypersensitivity to a condition does not necessarily exclude accidental means. (Adlerblum v. Metropolitan Life Ins. Co., 259 App. Div. 859, affd. 284 N. Y. 695.)
There is no doubt that the gall bladder operation set in motion the chain of events which eventually culminated in inefficiency of the kidneys causing uremic poisoning from which the patient died. Where the result which followed is of a type which had not occurred in 2,000 cases one cannot say as a matter of law that it is not an accident or that death did not occur by accidental means. (Cf. Escoe v. Metropolitan Life Ins. Co., 178 Misc. 698, 699; Ann. 152 A. L. R. 1288 et seq.; Garten v. Metropolitan Life Ins. Co., 262 App. Div. 899; 29 Am. Jur., Insurance, § 1001.)
The fact that the deceased suffered some disease of the gall bladder would not bar recovery unless that disease was a major contributing factor, directly or indirectly, to the death, or the policy contained an exclusionary provision to that effect. That, of course, must be determined from the proof. Mere exposure to an operation, voluntarily undertaken, is not a bar, for from *186the testimony, the act of volition did not include “ foresight of the peril and acceptance of the consequences ”. Nor are the concepts of disease and accident necessarily exclusive. (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83, 85, 88; Messersmith v. American Fidelity Co., 232 N. Y. 161.)
We do not decide the ultimate fact but only that there was sufficient uncontradicted evidence to warrant submission of the case to the jury. (Cf. Morgan v. Indemnity Ins. Co. of North America, 302 N. Y. 435; Ann. 52 A. L. R. 2d 1090.) For the jury could well have found this to be an unusual unexpected effect of a known cause, and that death occurred by accidental means or as the result of an accident.
The judgment should be reversed, on the law and the facts, and a new trial ordered, with costs to abide the event.