Plаintiff of Pennsylvania in her own right and as administratrix of the estate of George Kowtko, deceased, brought this action under the Pennsylvania Wrongful Death 1 and Survival Acts, 2 to recover damages from defendant railroad, a New York corporation, for the death of her son, George Kowtko, caused by defendant’s negligence in a grade crossing accident in this district. The jury returned a verdict for plaintiff in *98 her own right, $15,000; as administra-, trix, $35,000. 3 Defendant moves to set aside the verdict and for judgment in its favor and in the alternative for a new trial. 4
Diversity of citizenship and the requisite amount in controversy being the sole basis of jurisdiction, the substantive law of Pennsylvania is controlling as to the rights and obligations of the parties. 5 The proper function of the Federal Court is to ascertain what the state law is, not what it ought to be. 6
Viewing the facts, including all inferences reasonably deducible therefrom in the light most favorable to the verdict, 7 it appears that about 4 .TO P.M. on a day in March, George Kowtko drove his Pontiac sedan automobile north on South Valley Avenue in the Borough of Olyphant and westward to the point where the avenue crosses defendant’s four tracks — a busy urban crossing. There was a light snow falling, the sky overcast, the air misty, the asphalt pavement and the wooden planked crossing wet. A long-time resident of the borough and familiar with the crossing, Kowtkо stopped his car about 15 to 20 feet east of the crossing ( — on plaintiff's Ex. 6), the usual place of stopping. From that point there was a 4.3 % downgrade toward defendant’s tracks. The view to the north 8 was about 200 feet diagonally — 158 feet north of the crossing; any further view being obstructed by the contour and topography of the land, an embankment, the gateman’s tower located on the northeast side of the crossing, a Hudson Coal Company mine sign, a fence, fence posts, bushes, and concrete cribbing along defendant’s *99 right of way. The jury had a view of the locus in quo. A full view to the •north was not available until one had passed defendant’s first or siding track. 9
About that time there was traffic on a narrow gauge minе track which intersected the avenue to Kowtko’s rear, a train stopped south of the crossing on defendant’s first track, an automobile driven by one Preschutti some 8 to 10 feet ahead of Kowtko about to traverse the crossing. Having stopped, looked and listened, the gates being in a raised position, Kowtko proceeded at 5 to 10 miles an hour carefully 10 across defendant’s tracks.' In a few seconds, as the car reached the fourth track, it was struck by the head diesel unit of one of defendant’s southbound freight trains, 11 traveling at the moment 50 miles per hour, 12 hurled into the air onto defendant’s northbound track, rolled end to end three times, coming to rest some 70 to 75 feet from thе point of contact. The automobile was demolished. The head end of the train came to a stop 1,400 to I, 500 feet below the crossing. As a result of the injuries sustained Kowtko was rendered unconscious and died within ten minutes after the collision.
*100 Three witnesses 13 in the vicinity at the time, (a) one on the small-gauge track on South Valley Avenue, (b) another on a six-foot embankment northeast of the crossing, and (c) Preschutti, testified that they had heard no whistle or bell or other signal sounded before the accident.
Immediately southwest of defendant's crossing Lafayette Street turns rather abruptly northeasterly toward defendant’s tracks onto a wooden planked part of defendant’s crossing. 14
There were gates on the east and west side and a separate gate for traffic on Lafayette Street. The gates were controlled by separate levers in the gate-man's tower; raised and lowered by a manually operated four foot long pump handle, the raising or lowering operation respectively requiring about sixteen seconds. Just before the collision one Koslab, a farmer, drove his truck north on Lafayette Street and, the gates being up, passed the point where the gates would normally come down. After stopping to let South Valley Avenue traffic, pedestrian and vehiculаr, pass, he shifted into low gear and was about to proceed onto the crossing when he noticed defendant’s train some 50 to 75 feet away. (See defendant’s Ex. 9). He stepped on his brake; the truck was “jumping”. As the train passed by the front end of the truck was only a few feet away. Defendant’s engineer testified that he sounded his bell and whistle for another crossing 1,000 to 1,200 feet to the north; when the train was 750 feet from the South Valley Avenue crossing, seeing the truck in danger (see view defendant’s Ex. 6, 175 feet; plaintiff’s Ex. 9, 100 .feet), he sounded his whistle (the usual crossing signal), the bell was ringing, and repeated the signal at 500 feet. He then sounded short sharp whistles and when the train was 50 feet from the crossing put the brakes into emergency position. After the emergency brakes were applied the train went over the crossing at 40 miles per hour. From his position on the right 30 feet from the head end, he did not see either of the two cars on the crossing. The fireman on the left side heard the whistle repeated, 15 *101 the bell ringing; right after the brakes were applied he saw the two cars coming onto the crossing, observed that one car just passed, the other was struck by the engine.
When the train was 1,000 to 1,200 feet north of the crossing the gateman, a fairly new hand at the job, lowered one set of gates, i. e., the northeast and southwest gates on South Vаlley Avenue (see x on defendant’s Ex. 1). When the train was 250 feet from the crossing he was leaning out the tower window blowing a police whistle and waving his arms to attract the truck driver’s attention. When the train was “very, very close” to the crossing, excited, he raised the gates purportedly to help the truck driver, but actually of no help at all, and in doing so invited traffic to use the crossing, of course, with due care under the circumstances but with a sense of caution dulled by the apparent indication that the crossing was open for- use by vehicular traffic. After the accident the two sets of gates east and west, not the Lafayette Street gate, were lowered. The gateman never saw Kowtko’s car until after it was struck and did not know where it came from. (Cf. defendant’s Exs. 10 and 11).
Whether under the circumstances: adequate and timely signals were given — especially after the gates were raised; there was excessive speed; the train was under proper control and was handled with care; there was negligence in not lowering all the gates; in raising the gates which could not possibly help the situation and actually created more danger, and finally whether or not in view of the presumption of care, because of the death of Kowtko and the place of the accident, the defendant was negligent or plaintiff’s decedent free from contributory negligence, were all questions for the jury. 16 The verdict and answers to interrogatories were in plaintiff’s favor. 17 There was substantial competent evidence to support the verdict. 18 Defendant’s motion to set aside the verdict and for judgment in its favor will therefore be denied.
*102 In its motion for a new trial 19 defendant asserts the verdict was excessive; inadequacy of proof of cost of decedent’s maintenance, and of contributions by plaintiff to the decedent; that gratuity subsistence payments to George Kowtko by the Veterans Administration did not constitute earnings; error in our instructions as to the pоssible measure of damages.
. Decedent was twenty-nine years ten months of age at the time of his death. At twenty-one he was inducted into the United States Army and at some time during thirty-eight months of military service had an occupational specialty of Movie Projectionist 137. Within four months after his military service terminated and until the time of his death he was employed steadily and worked regularly at the Billig Shoe . Company, in what capacity was not shown. His average monthly earnings for the year previous to his death were $174.13, and for the four months immediately prior to his death $174.44. While there was no evidence as to the extent of earlier school attendanсe the decedent was enrolled and attended night school under Public Law 346, Veterans’ Regulation No. 1(A),.pt. 8, 38 U.S.C.A. following section 745, in training in the Industrial Sewing Machine and Repair School from July 18, 1949, to July 23, 1950; from November 15, 1950, to March 16, 1951, he was in training as an automobile mechanic at the Mid-Valley Vocational School. As a veteran he received $70 per month subsistence allowance from the Veterans Administratioh and was- entitled at the time of his death to two years, eight ■months, and eleven days additional training and subsistence allowance, (ten months, seven days at the time of trial). Public Law 512, Veterans’ Regulation No. 1(A) pt. 8, subd. 6(a), established a ceiling of $210 per month including regular earnings plus the subsistence allowance.
. Upon returning from military service he lived for eleven months with his mother 20 in her seven-room home on Grant Street in the area of the accident. Thereafter he and his wife, whom he married while in the service, lived with the mother for seven months and then moved to an apartment on Park Street where they lived together for two years. After signing a separation agreement and waiver of support and property rights, his wife returned to Scotland. 21 He then returned to live with his mother. The mother testified that he turned his entire pay from the shoe factory, $174.44 monthly, over to her; the $70 subsistence allowance he kept for himself to “buy clothes * * * pay (his) expenses * . * * pay bills for the car”. She used his salary to provide badly needed repairs for the house, pay taxes, utilities, coal and water bills and to purchase food and run the home.
Decedent paid $2,400, saved largely from his subsistence allowance, for a Pontiac car, $400 of which was given to him by his mother from the salary he had turned over to her.
*103 There was testimony that decedent had good habits and a good reputation; that he was sober, thrifty- and industrious; strong and healthy, and a steady worker. From its visit to the scene and through exhibits and other evidence at the trial, the jury had a picture of the manner of plaintiff’s drеss and appearance, and of the neighborhood in which the plaintiff and decedent lived. It was agreed that, according to the mortality tables, decedent’s life expectancy at the time of death was thirty-eight years. Defendant contends that there was no evidence of cost of deceased’s maintenance or of the value of contributions plaintiff would be expected to make to or on behalf of her son if his death had not occurred, and that therefore the question of damages was at best a matter of conjecture and speculation.
At the time of trial: Plaintiff was sixty-two years of age, appаrently in good health; damages to the car were $1,950; the funeral bill paid by plaintiff $840.61; loss of decedent’s wages and subsistence to date of trial $4,988.64. 22
" [11,12] Having decided that plaintiff was entitled to recover, the jury had the duty of awarding fair and reasonable compensation, not punishment, under each cause of action without any duplication of damages. Plaintiff was entitled (a) in her own right to recover under the Death Act the pecuniary loss she sustained by reason of her son’s death measured by the present worth
23
of the amount she probably would have received for her support,
24
while the family relationship continued between them, from his likely еarnings and services during the period of his life expectancy,
25
without any allowance for pain or suffering by the deceased, or mental suffering, grief, despair, disappointed hopes or loss of decedent’s companionship by the plaintiff as mother; (b) as administratrix on behalf of decedent’s estate under the Survival Act the pecuniary loss occasioned to decedent and therefore to his estate by defendant’s tortious conduct measured by the present worth of his likely earnings and services during the period of his life expectancy,
*104
diminished by the amount he would likely have provided for his mother
26
and by the probable cost of his own maintenance and incidental expenses
27
during the time he would likely have lived but for the accident. Gaydos v. Domabyl, supra, 301 Pa. at pages 530, 531,
It was the duty of the jury to, consider, in arriving at a verdict, the age of the mother, how long she would be likely to live, and whether or not her son would continue to support her during her life’s duration. It also had the right to consider whether he might become reconciled with his wife or remarry, thereby diminishing his ability to support his mother. Vescio v. Pennsylvania Electric Co.,
Speaking of the necessity of deducting the cost of decedent’s maintenance, Murray v. Philadelphia Transportation Co., supra,
In Johnson v. Baltimore & O. R. Co., supra,
It is elementary that compensatory damages cannot be allowed unless there is satisfactory evidence to support them. Pilipovich v. Pittsburgh Coal Co., supra,
While plaintiff’s case would be stronger if there was specific evidence as to the cost of board and lodging, it would in all probability,,be an estimate since records of such items are in many instances not kept or maintained, and the amount thereof may vary considerably with any change of circumstances in the' future.
30
Based upon the foregoing, together with evidence as to age, health, earning power and general station in life, the jury could determine what would have been reasonable living expenses under the circumstances. Although the proof as to cost of maintenanсe and of contributions was not of the best, we think, under the circumstances, it was sufficient. See and cf. Pennsylvania R. Co. v. Zebe, 1858,
In estimating the likely earnings of decedent a factor to be considered is that earning power naturally decreases as life approaches its end. Murray v. Philadelphia Transportation Co., supra,
After detеrmining the amount of damages to which plaintiff is entitled over the years the payment thereof must be anticipated and capitalized, (Leonard v. Baltimore & O. R. Co., 1917,
We know of no reason for excluding the subsistence payments as part of the regular income of the decedent for the time in question. See and cf. Lynch v. United States, 1934,
Considering all factors presented by the evidence the jury could determine the life expectancy of the decedent and of the plaintiff and the pecuniary loss for which damages were to. be awarded. It is not a mere matter of mathematical calculation. McCaffrey v. Schwartz, supra,
Ordinarily in these cases the damages must depend very much upon the good sense and sound, deliberate judgment of the jury upon all the facts and circumstances of the particular case. Illinois Central R. Co. v. Barron, 1866,
Wages and subsistence payments up to the time of trial arid, in view of the short period of time involved, the remaining subsistence payments need not be reduced to their present worth. First Nat’l Bank in Greensburg v. M. & G. Convoy, Inc., supra, D.C.,
For purposes of calculation we have assumed that the cost of maintenance would be a minimum of about $75 per month, the monthly salary $174.44, with a possibility of a modest increase during decedent’s life expectancy, from the date of trial, of thirty-six years.
Applying these tables to the facts in this case, it is evident that the jury either misunderstood or did not correctly apply the instructions of the court in arriving at the net amount of their award in each action. See Mars v. Meadville Tel. Co., supra,
In the interests of justice the court does not feel compelled to grant a new trial unconditionally. Plaintiff will however be required to remit in the death aetion all monies awarded under the verdict in excess of $8,913.23, and in the survival aсtion all monies awarded under the verdict in excess of $20,797.52. If plaintiff fails to file a stipulation to that effect within twenty days ■ a new trial will be awarded.
Notes
. Act of April 15, 1851, P.L. 669, § 19, as amended by tbe Act of April 26, 1855, P.L. 309, §§ 1 and 2. Act of May 13, 1927, P.L. 992, § 1, 12 P.S.Pa. §§ 1601-1604. (Act of June 7, 1911, P.L. 678, § 1, and April 1, 1937, P.L. 196, § 1, are not herein pertinent.)
As to the proper party plaintiff, see Suders v. Campbell, D.C.M.D.Pa.1947,
. Act of April 18, 1949, P.L. 512, Art. VI, §§ 601, 603, 20 P.S.Pa. §§ 320.601, 320.603, based upon the Act of June 7, 1917, P.L. 447, § 35(b) and see Act of July 2, 1937, P.L. 2755, § 2; 20 P.S.Pa. Ch. 3, Appendix, § 772.
. And answers to eleven interrogatories submitted at defendant’s request over plaintiff’s objection. See Fed.Rules Civ. Proc. rule 49(b), 28 U.S.C.A.; Biggans v. Hajoca Corp., 3 Cir., 1950,
. Defendant’s motion to dismiss at the close of plaintiff’s case, Buie 41(b), was denied; ruling reserved on defendant’s motion for directed verdict, Buie 50(b), at the close of all the evidence. As to the motion for new trial, see Buie 59(a) (1).
. Johnson v. Baltimore & O. R. Co., 3 Cir., 1953,
. Klaxon Co. v. Stentor Electric Mfg. Co., Inc.,
. Cheffey v. Pennsylvania R. Co., D.C.E.D. Pa.1948,
. Plaintiff’s Exs. 6, 7. Defendant’s Exs. 1, 2.
. Cf. Plaintiffs Ex. 8; defendant’s Exs. 3, 4, and 5.
. See and cf. Aiken v. Pennsylvania R. Co.,
Bush v. Philadelphia & Reading R. Co.,
. ' Three diesel units, ninety-six loaded cars, nine empties, and' a caboose.
. See Solomon v. Lehigh Valley R. Co., 1945,
. (a) Cruciani, a plumbing and heating contractor (see X on plaintiff’s Ex. 10); Kowtko stopped his ear before crossing, the gates were up; the train first came into the witness’ view 15 feet north of Kowtko’s car. Living near a crossing he was used to hearing such signals. Although he had a mastoid operation and had some difficulty in hearing at heights and indoors, he insisted his hearing was good when out of doors, (b) (See X on the right side of plaintiff’s Ex. 11); saw the train coming and the cars proceeding over the crossing, (c) “When I got on the third track I noticed this train coming down * * * the way the weather was, I would say maybe one hundred feet at the furthest — maybe fifty feet at the most * * * cleared * * * fourth track * • * few (2 or 3) seconds * * * heard concussion * * Heard no signals when driving over the crossing; his car windows were closed; the radio playing. See Anstine v. Pennsylvania R. Co., 1941,
. Defendant’s Exs. 1, 3, 9, 10, 11. Plaintiff’s Exs. 2, 6, 9,10,11.
. The head trainman on the left side of the second diesel unit heard “him blow the whistle”, but did not hear the bell. Just as be heard the whistle “toots” he looked and saw the collision. The middle man on the right side of the second diesel unit, looking back over the train, heard the crossing and short whistle sounds, not the bell.
. As to negligence see Tiller v. Atlantic Coast Line R. Co., 1943,
. Decedent was not negligent, (1), (2), (3) ; came to a full stop at the usual stopping place before entering the crossing (9); defendant, approaching at an excessive speed (5), did not give timely and adequate warning of the approach of the train (4); the truck driver was not in danger of impending peril (6); the gateman did not act to protect the truck driver and his passenger from peril (7), and did not use judgment arising from peril under the circumstances (8); George Kowtko left a widow who was still living (10) and (11).
See Eckenrode v. Pennsylvania R. Co., supra,
. Kulka v. Nemirovsky, 1934,
. Defendant withdrew reasons 2, 3, 7, 8. As to the applicable tests, see Cheffey v. Pennsylvania R. Co., supra,
. A widow; the other four adult members of the family lived elsewhere; decedent alone contributed to her support.
. Whether she thereby or in separate negotiations with defendant company released any claim she may have to share in the verdict will be more pertinent at the time of distribution. See McFadden v. May, and Kaczorowski v. Kalkosinski, supra, note 1, and Pantazis v. Fidelity and Deposit Company of Maryland, 1952,
. There was no evidence or claim for medical, surgical, nursing, hospital or other expenses. Act of Hay 13, 1927, supra. Reasonable funeral expenses are allowablе only under the Death Act. See Radobersky v. Imperial Volunteer Fire Dept., 1951,
. “ * * * to a sum which if paid on the date of the verdict would then be a just cash equivalent of the sum total of such lost future contributions.” Vescio v. Pennsylvania Electric Go., supra,
. Since he turned over his whole pay from the shoe factory to his mother, the result would be determined by deducting therefrom the value of contributions she would have been expected to make for her son’s benefit, i.e., board, lodging, etc. Gaydos v. Domabyl, 1930, supra,
. McCaffrey v. Schwartz, supra,
. See note 24, supra. There being' no claim, for ór any evidence of loss of wages, or pain and suffering prior to decedent’s death. As to
the
latter, see 16 Am. Jur. Death, § 191; New Orleans & N. E. R. Co. v. Harris,
. Glaseo v. Green, 1922,
. Cf. Radobersky v. Imperial Volunteer Fire Dept., supra,
. See and cf. Annotation,
See Gentile v. Philadelphia & Reading Ry„ 1922,
. See Pennsylvania Bar Quarterly, October 1954, Vol. 26, p. 26 at pages 31, 34, as to items included and possible variables • as to the future and difficulty of proof thereof. Id., Yol. .25, April 1954, 284 at pages 287, 289, clothing,. food, shelter, entertainment, hospital, medical expenses and the like. Id., at page 290, “The prоblems inherent in determining, the question of life expectancy, future loss of earning power and probable cost 'of future- maintenance are ones peculiarly to be left to the sound judgment and discretion of the jury.”
. “* * * not mean * * * discount should be * * * ‘legal rate’ of interest; that is, the rate limited by law, beyond ' which interest is prohibited. It may be ■ that such rates are not obtainable upon investments on safe securities * * * without the exercise of financial experience and skill in the administration of the fund; * * * compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill, for where this is necessаrily employed, the interest return is in part earned by the investor rather than by the investment. This * * * is a matter that ordinarily may be adjudged by scaling the rate of interest to be adopted in computing the present value of the future benefits; * * * common knowledge * * * best and safest investments, and those which require the least care, yield only a moderate return.”
. “In ascertaining the present worth of the future loss of earnings, that is, in discounting the recovery because future losses are paid for in advance, the rate of discount is based upon the current return upon long-term investments if the prospective losses are long continued.” Restatement, Torts, § 924(d). See Sabine Towing Co. v. Brennan, 5 Cir., 1936,