Inc., 1933, 310 Pa. 1, at page 6, 164 A. 605. In view of the evidence as to the likelihood of advancement or increase in earnings, see 16 Am.Jur. § 213, only a modest allowance would be warranted in that regard.
After determining 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, 259 Pa. 51, at page 58, 102 A. 279,) 'at simple interest at the legal rate'. Murray v. Philadelphia Transportation Co., supra, 359 Pa. at page 74, 58 A.2d at page 325 (footnote 7). 'A jury must compute damages according to law * * * when passing upon the question of future damages they can allow, as the present worth, such sum only as put at simple interest will, with the accumulations of interest, amount to such damages at the time or times * * * when the jury find from the evidence they will be sustained. Moreover, the interest must be computed at the lawful rate of 6 per cent. See 17 Corpus Juris 906.' Windle v. Davis, 275 Pa. 23, at page 29, 118 A. 503, at page 505. While Mars v. Meadville Tel. Co., supra, 344 Pa. at page 33, 23 A.2d 856, and Thirkell v. Equitable Gas Co., 307 Pa. 377, at page 382, 161 A. 313, assumed without discussion a five per cent rate in making calculations, and suggestions have been made that a lesser rate would be more just and equitable, see dissent Mr. Justice Stern, Murray v. Philadelphia Transportation Co., supra, 359 Pa. at page 79, 58 A.2d 323 (footnote 2), and comment Marsh, J., in Patton v. Baltimore & O.R. Co., supra, 120 F.Supp. at page 666 (footnote 11), and of Mr. Justice Pitney in Chesapeake & O.R. Co. v. Kelly, supra, 241 U.S. at page 490, 36 S. Ct. at page 632, 60 L. Ed. 1117;
Restatement Law of Torts, § 924(d),
the words of Murray v. Philadelphia Transportation Co., supra, and of Windle v. Davis, supra, are peremptory and our duty under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, and its progeny, is to follow. '* * * the question of the proper measure of damages is inseparably connected with the right of action * * *.' Chesapeake & O.R. Co., v. Kelly, supra, 241 U.S. at page 491, 36 S. Ct. 630, at page 632, Gulf, C. & S.F.R. Co. v. Moser, 275 U.S. 133, at pages 135, 136, 48 S. Ct. 49, 72 L. Ed. 200.
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, 292 U.S. 571, at page 577, 54 S. Ct. 840, 78 L. Ed. 1434.
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, 285 Pa. at page 571, 132 A. 810. We are aware of the difficulty involved where a jury attempts to calculate the present worth of an award of damages. In some jurisdictions expert witnesses are called and standard interest, annuity and present worth tables received for use by the jury; see, e.g., Vicksburg & Meridian R. Co. v. Putnam, supra, 118 U.S. at page 554, 7 S. Ct. 1, 30 L. Ed. 257; their use is however not permitted by a jury in Pennsylvania in cases of this kind. McCaffrey v. Schwartz, supra, 285 Pa. at page 570, 132 A. 810; Kerrigan v. Pennsylvania R. Co., supra, 194 Pa. at page 106, 44 A. 1069. Such tables may however be used by the trial judge in considering a claim of excessiveness of the verdict. Thirkell v. Equitable Gas Co., supra, 307 Pa. at page 383, 161 A. 313; Mars v. Meadville Tel. Co., supra, 344 Pa. at page 33, 23 A.2d 856; Murray v. Philadelphia Transportation Co., supra, 359 Pa. at page 76, 58 A.2d 323; Johnson v. Baltimore & O.R. Co., supra, 120 F.Supp. at page 666 (footnote 11).
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, 5 Wall. 90, 105, 72 U.S. 90, 105, 18 L. Ed. 591. Where there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury, rather than the contrary. Smith v. Pittsburgh & W.R. Co., C.C.Ohio, 1898, 90 F. 783, at page 788. However, the discretion of the jury as to the amount of damages to be awarded, while very wide, is not an arbitrary or unlimited discretion, but must be exercised reasonably, intelligently, and in harmony with the testimony before it and, we add, with the instructions of the court. See our opinion in Fornwalt v. Reading Co., D.C.E.D.Pa., 79 F.Supp. 921, at page 923; Patton v. Baltimore & O.R. Co., supra, 120 F.Supp. at pages 666, 667; 15 Am.Jur. Damages, § 366, p. 804.
Wages and subsistence payments up to the time of trial and, 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., 102 F.Supp. 494, at page 496.
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, 344 Pa. at page 34, 23 A.2d 856; McCaffrey v. Schwartz, supra, 285 Pa. at page 568, 132 A. 810.
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 action all monies awarded under the verdict in excess of $ 8,913.23, and in the survival action 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.