This аppeal is from a judgment for the plaintiff on the verdict of a jury after a trial on the merits upоn the remand following our reversal of a former judgment of the District Court for the Eastern District of New Yоrk dismissing the complaint. Herzig v. Swift & Co., 2 Cir.,
Relying on diversity as the ground of federal jurisdiction, the plaintiff as administratrix of thе estate of Herman Weintraub brought the suit to recover damages under Florida law, F.S.A. § 768.01 ,et seq., for his death on January 23, 1941 in an automobile accident in Florida alleged to have been causеd by the negligence of the driver of a truck owned by the defendant and then being operated in the business of the defendant on a Florida highway about IS miles south of Jacksonville.
The evidence in bеhalf of the plaintiff as to the cause of the accident is found in the testimony of a Mrs. Youngs who was driving her automobile, no one but her son five years old being with her, south on the highway which was a straight roаd for some two miles in each direction from the place of the accident and was about 20 feet wide with an asphalt surface divided at the center by a yellow line. She testified that she was traveling about 30 miles an hour close to the right side of the road in the southbound lane and had bеen followed for some time by the defendant’s truck being driven at about the same speed some 40 feet behind her and somewhat closer to the center line. It was at about half past sevеn in the morning in clear weather when the defendant’s truck pulled up on her left-hand side and acrоss the center line somewhat into the northbound lane in an attempt to overtake and pass her. Before the truck could pass her car but when it had drawn up alongside, it collided with an automobile in the northbound lane being driven by the decedent toward the north. Both that automobile and thе truck were overturned by the force of the collision and the decedent was killed. Mrs. Youngs didn’t remеmber having noticed the northbound car approaching until she saw it just before the accident but the circumstances make it clear that the
In Herzig v. Swift & Co., supra, we dealt with the permissible proof of damagеs in this case in reference to the applicable sections of the Florida statute which need not be repeated. The court’s charge was in accord with our former decision on that subject.
This decedent left no dependents and, the measure of damages for his wrongful dеath is the difference between the value of his estate at death and what its value would have been had he not been killed, discounted actuarily to present value. Florida East Coast R. v. Hayes,
This decedent was forty-three years old and he had a life expectancy оf 25.99 years. He was a strong, industrious man regularly engaged in the business of the partnership in which he had an intеrest and had saved about $2,000 in a comparatively short time. There was, therefore, evidenсe as to the damages and, though the verdict may have been generous, the amount of the dаmage sustained was a question of fact not reviewable in this court on appeal. Fairmount Glass Works v. Cub Fork Coal Co.,
The charge as to contributory negligence may have been errоneous, as first given, but it was corrected in this respect when objection was made and as corrected conformed to Florida law. Shayne v. Saunders,
Nothing else which occurred during the trial to which our attention has been called merits discussion.
Judgment affirmed.