The opinion of the court was delivered by: MCVICAR
The intersection of Fifth Avenue and Smithfield Street in the City of Pittsburgh, Pennsylvania, is one of the busiest intersections in said city. In the early morning of January 19, 1951, between 3:00 and 4:00 A.M., defendant by one of its drivers, was driving a mail truck or bus northerly on Smithfield Street. Louis Di Benedictis was driving a Pontiac Sedan easterly on Fifth Avenue, in which were riding his wife, Alma Di Benedictis, and two passengers riding on the rear seat. The truck of defendant and the Pontiac Sedan of Louis Di Benedictis came into collision at said intersection because the driver of said truck and the driver of said Pontiac Sedan were each driving their vehicles at a high and negligent rate of speed and without have the same under control. Alma Di Benedictis and Louis Di Benedictis brought actions together under the Federal Tort Claims Act against the defendant in this case, in which they charged that the defendant was negligent in driving its auto truck or bus at a high, dangerous and excessive rate of speed.
The defendant filed an answer thereto, denying the negligence charged, alleged that the accident was caused by the negligence of Louis Di Benedictis, and filed also a counterclaim for repairs to the truck in the amount of $ 158.42.
After petition to this Court on November 26, 1951, a severance was ordered of the claims of plaintiff Alma Di Benedictis, and leave was given to defendant to make Louis Di Benedictis a third-party defendant in this action. Defendant in its pleadings also claimed the right to contribution against Louis Di Benedictis for any amount that might be recovered against it.
No question of negligence of Alma Di Benedictis is involved in this case because it was orally stipulated by the parties and made an Order of Court at the pretrial that she was not guilty of any contributory negligence. The question of negligence of the defendant in Alma Di Benedictis' case is one for the Court.
If Louis Di Benedictis was guilty of contributory negligence, he cannot recover as against the defendant, nor can the defendant recover on its counterclaim against Louis Di Benedictis by reason of negligence of the driver of defendant's truck or bus. See 28 U.S.C. § 1346(b); Cardarelli v. Simon, 1942, 149 Pa.Super. 364, 27 A.2d 250.
Defendant is entitled to contribution from Louis Di Benedictis of one-half of the judgment entered in this case. See 12 P.S. § 2081; austine v. Pennsylvania Railroad Co., 1945, 352 Pa. 547, 43 A.2d 109, 160 A.L.R. 981; Rule 14(a) of Federal Rules of Civil Procedure, 28 U.S.C.; Howey v. Yellow Cab Company, 3 Cir., 1950, 181 F.2d 967, affirmed United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523.
Plaintiff Alma Di Benedictis' claim for damages as set forth in her Complaint is: '* * * as a result of which she has suffered, and may, and probably will in the future, continue to suffer great pain and agony, and she has been and probably will in the future be hindered and prevented from attending to her usual and daily duties, to her great damage and loss.'
This claim seems to be limited to pain, suffering and inconvenience and does not embrace a claim, as contended for at the hearing, for impairment of her earning power. Under Pennsylvania law a married woman ordinarily, where she has a husband with whom she is living, is entitled to damages only for pain, suffering and inconvenience, the husband being entitled to recover damages for expenses and for loss of her services, including consortium. It appears from the evidence that she has been married about six years; that she ordinarily did her household work in her home which she is not able to do now; that about a year prior to the accident she worked for about three weeks for a third person; and also that she worked about six years ago for two years for another person. There was no evidence that it was her intention or that of her husband that she continue to work for others after this accident up to and including the present time. Under the law, I am of the opinion that she cannot recover for impairment of earning power or for medical expenses. I call attention to the case of Frysinger v. Philadelphia Rapid Transit Company, 1915, 249 Pa. 555, 95 A. 257.
It may not be amiss to call attention to the Pennsylvania Statutes relating to negligence of automobile drivers generally and at intersections, as follows:
75 Purdon's Stat. § 572(a)(b): 'Right of Way
'(a) When two vehicles, or two street cars, or two trackless trolley omnibuses, approach or enter, or when any vehicle, street car, or trackless trolley omnibus, approaches or enters an intersection at approximately the same time, the driver of the vehicle, street car, or trackless trolley omnibus on the left, shall yield the right of way to the vehicle, street car, or trackless trolley omnibus on the right, except as otherwise provided in this act. The driver of any vehicle, street car, or trackless trolley omnibus traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder.
'(b) The driver of a vehicle, street car, or trackless trolley omnibus, approaching but not having entered an intersection, shall yield the right of way to a vehicle within such intersection * * *.'
75 Purdon's Stat. § 501(a)(b): 'Restrictions as to Speed
'(a) Any person driving a vehicle on a highway shall driver the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and of any other restrictions or conditions then and there existing; and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb, or property of any person, nor at ...