The Fidelity Land and Improvement Company v. Buzzard

• Decision Date: 07 May 1904
• Docket Number: 13,624
• Citation: 69 Kan. 330,76 P. 832
• Parties: THE FIDELITY LAND AND IMPROVEMENT COMPANY v. JOHN BUZZARD et al
• Court: Kansas Supreme Court

76 P. 832

69 Kan. 330

THE FIDELITY LAND AND IMPROVEMENT COMPANY v. JOHN BUZZARD et al

No. 13,624

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ACTION FOR DEATH--Measure of Damages Where Parents Sue for Wrongful Death of Minor Son. In an action by the parents to recover damages for the death of a son based upon services during his minority, and upon benefits which they had expected to receive from him by way of support after he should have arrived at the age of majority, held that it is error to instruct the jury that, in addition to the amount which the plaintiffs are entitled to recover for the loss of the son's services during his minority, they are entitled to recover such reasonable amount as they may find that plaintiffs should recover as the pecuniary benefits which they might have reasonably expected to receive from the son after he should have reached his majority and during the time he should have continued to live; and held, further, that the parents' right to recover for such expected benefits is limited to the life of the parents.

W. R. Cowley, and Blue & Hamilton, for plaintiff in error.

E. M. Tracewell, and W. J. Moore, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This was an action to recover damages for the death of the plaintiff's minor son, Jesse Buzzard. The defendant was a corporation engaged in mining coal. Jesse Buzzard was working in the mines for it and was called a "coal-pusher." The coal was lifted from the mine in a cage which was run by steam, by means of a cable attached to the top of the cage and passed to the top of the mine and over a pulley, and thence to the drum in the engine-room, which stood about fifty feet from the top of the mine. It was the duty of the deceased to push small cars of coal from the place where mined into this cage and then pull a wire cord which rang a bell in the engine-room signaling the engineer to hoist the cage.

It was alleged in the petition that one Massengale was the mine-boss, who had charge of all the workmen and directed them in the operation of the mine, employing and discharging whomsoever he chose; that at the time of deceased's injury Massengale was at the top of the mine with the engineer; that immediately before the injury the deceased had pushed a car into the cage and had signaled the engineer to hoist the same, and while he was waiting for it to be hoisted the mine-boss called from the top of the mine that if there was a car on the cage the pushers should remove it and get into the cage and come up to assist in replacing a car on the dump; that the deceased and another pusher undertook to pull the car from the cage, but because of some defect in the cage or car they were unable to do so, and the deceased entered the cage with a short lever, intending to lift the car, in order that his assistant might pull it out of the cage; that while so engaged, and after they had got the car partially out of the cage, the engineer turned on the steam, thus lifting the cage, by reason of which the deceased was in some way caught between the car and the cage and so injured that he died within a few minutes. The specific acts of negligence charged were that Massengale did not notify the engineer of the instructions given to the pushers, and failed to instruct him not to lift the cage until the pushers had signaled him to do so.

Errors are predicated upon the overruling of the demurrer to the petition and the overruling of defendant's objection to the introduction of any...