intestate, were the proximate result of said negligence.
At the trial of these cases the Government presented orally and in writing motions to dismiss the two claims with prejudice. In support of these motions the Government argued that the cases are excepted from the grant of consent to be sued because they involve discretionary functions and the Government has not accepted liability for the consequences of the discretionary acts of its officers and employees. Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427.
This question was presented squarely to Government witness Edward F. Crowley, Area Chief of the Allegheny River Corps of Engineers, Pittsburgh District who had jurisdiction over Lock No. 8. He replied that the lockman had absolutely no discretion to light or not light the lanterns.
It is neither necessary nor appropriate to inquire into whether the chief administrative officer of the Corps of Engineers might have decided, in an exercise of discretion, that the locks should be left in darkness when unattended. It is enough that superior officers have promulgated an unqualified rule to the effect that the lock should not be left in darkness. It is clear that the negligence herein charged was in no manner associated with an exercise of discretion. U.S. v. Hull, 1 Cir., 195 F.2d 64; Jackson v. U.S., 3 Cir., 196 F.2d 725; Costley v. U.S., 5 Cir., 181 F.2d 723.
In connection with the evaluation of an appropriate award in damages, I find that Carl A. Bevilacqua was a High School Student, age 16, at the time of his demise. He was not yet gainfully employed and there exists, therefore, no record or direct evidence of his earning ability. All that is known in this regard is that he was in good health and that he had applied himself with determination to the task of preparing for gainful employment in adult life. He had a life expectancy of nearly fifty years.
Under the laws of Pennsylvania, the estate of Carl A. Bevilacqua has a claim for damages equal to his expected earnings less cost of maintenance and reduced to present worth. Under the circumstances this loss is somewhat conjectural but can be fairly estimated at $ 1,500.
The parents of Carl A. Bevilacqua likewise have suffered a financial loss which is compensable under Pennsylvania law. That loss is equal to funeral expenses in the amount of $ 1,280.50, and expected financial assistance, the latter element again reduced to present worth. The award hereunder is $ 1,000.
At the time of his death, Emil Yentsch was age 35, in good health, and with a probable life expectancy of 35 years. He was a sheet metal worker earning $ 2.87 per hour or approximately $ 320 per month. He was engaged in this type of employment for twelve years.
Connie Yentsch, widow of Emil Yentsch, had been married to him for only seven months when tragedy struck. She described her husband as a man of temperate behavior and moderate requirements. His full earnings were freely available for such purposes as husband and wife considered best. The Yentschs occupied an apartment for which they paid a monthly rental of $ 77.50. It appeared that Mr. Yentsch's personal needs, including lunches and transportation to work, amounted to about $ 80 monthly. He made monthly contributions for the support of his father in Camden, New Jersey, in amounts of about $ 15.
The evidence is clear that Mr. Yentsch was regular and generous in the support of his wife, and his untimely death has inflicted upon her a financial loss which is equivalent to the present worth of her expected contributions from him during a period of his remunerative employment. In addition the funeral expenses totaled $ 660.32. The award to the dependent wife is $ 10,000.
The estate of Emil Yentsch is likewise entitled to receive the present worth of his expected future earnings less cost of maintenance. The award under the survival action is fixed at $ 1,000.
Findings of Fact.
1. Lovic D. Hughes was charged with the responsibility of lighting the kerosene lanterns at Lock No. 8 on July 14, 1951, and that he failed to do so.
2. As a direct consequence of the aforesaid negligence of a government employee, acting within the scope of his employment, Lock No. 8 was in darkness when the Patti collided with the dam.
3. As a direct and foreseeable consequence of the aforesaid negligence and the dangerous condition created thereby, libelants' intestates lost their lives on or about 12:00 p.m., July 14, 1951.
Conclusions of Law.
1. Jurisdiction is vested in this Court by virtue of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq.
2. The negligence of the government employee or employees entrusted with responsibility of lighting the seven kerosene lanterns, in failing to light said lanterns, on the night of July 14, 1951, at Lock No. 8 was the proximate cause of the deaths of Emil Yentsch and Carl A. Bevilacqua, libelants' intestates.
3. The negligence in failing to light the said lanterns on the night of July 14, 1951 was in no manner associated with an exercise of governmental discretion.
4. Carmen P. Bevilacqua, administrator of the estate of Carl A. Bevilacqua, deceased, is entitled to recover $ 1,500 in behalf of the estate of Carl A. Bevilacqua, $ 1,280.50 as funeral bill in behalf of the parents of said decedent, and $ 1,000 as expected financial assistance in behalf of parents of said decedent.
5. Connie Yentsch, administratrix of the estate of Emil Yentsch, deceased, is entitled to recover $ 10,000 in behalf of decedent's widow, $ 660.32 as funeral expenses in behalf of decedent's widow, and $ 1,000 in behalf of the estate of Emil Yentsch.
An appropriate order is entered.
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