Forbes v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 101 Kan. 477
• 168 P. 314
• 1917 Kan. LEXIS 122

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Railroad—Death of Employee — Negligence— Allegations and Findings — No Varicmce. The fact that the negligence of the railroad company, in an action for the death of an engine wiper, was pleaded as the failure to give the decedent notice of an insufficient clearance, while- the finding of the jury was that the negligence consisted of maintaining such insufficient clearance, held not to have been material under the circumstances of the case.</p> <p>2. Same — Employee—Under Direction of Employer — No Contributory Negligence. The evidence held sufficient to support a finding that, notwithstanding a general rule that engine wipers were not to work upon an engine while in motion, the decedent in this case had been specially directed to do so,, and therefore that the effect of the rule was nullified.</p> <p>3. Same — Negligence—Instructions. The instructions with respect to the company’s negligence held to have been nonprejudicial in view of the findings referred to.</p> <p>4. Same — Death—Amount of Recovery — Instructions. The trial court having instructed that an element of damage was the financial loss by the decedent’s wife, not exceeding the probable amount she would have received from his earnings had it not been for his death, it is held that reversible error was not committed in the failure to limit the recovery on this account to the present value of such future earnings, no instruction in that regard having been requested.</p> <p>5. Same — Findings of Fad. The findings of fact held to have been supported by the evidence.</p> <p>6. Same — Death1 of Employee — Verdid Not Excessive. An allowance to the widow of $1250 on account of her estimated pecuniary loss from the death of her husband held not to be large enough to justify interference by this court, although it was not shown that the money sent to her during an'absence of thirteen years exceeded $110, the wife being in Korea and the husband in this countr