was excessive. Both reasons have merit.
From careful observation throughout the trial, as well as from review of the trial record, the trial judge is convinced that the verdicts were against the weight of the evidence and that the jury, despite a conscientious effort, was unable to free itself from an understandable sympathy and compassion sufficiently to permit it to determine this case dispassionately.
The defendants' attack on the $ 45,000 verdict as excessive is hinged on the apparent assumption that, in this diversity case, Pennsylvania decisions on the question of excessiveness are controlling. Such an assumption would be incorrect. In the administration of diversity jurisdiction a federal district court '* * * properly applies state rules in instructing the jury as to the measure of damages or, more particularly, in identifying these items of injury or loss which may legally be recovered as damages. But otherwise, any claim that the verdict has been excessive requires a trial court to decide no more than whether the jury has reached a result which could rationally and dispassionately be reached by laymen on the basis of evidence relevant to the several categories of legally recoverable damage. * * * It may well be that experience with other cases and familiarity with rulings of other judges upon other verdicts has helped shape the trial judge's conception of the limits of an honest and rational award in the circumstances of the case at hand. But such exercise of professional judgment and judicial discretion is not the application of any rule of law, state or federal.' Lebeck v. William A. Jarvis, Inc., 3 Cir., 1957, 250 F.2d 285, 287-288.
Since the present jury was required to apply Pennsylvania law as to the measure of damage, jury verdicts and judges' rulings elsewhere can be of no aid, unless the same rule of damage was applied. Whether for this reason or because of a misconception that Pennsylvania decisions on excessiveness are controlling, counsel for plaintiff and defendant have ably and extensively reviewed the Pennsylvania cases. In no case cited, involving a minor's death, did any Pennsylvania jury award a verdict which could be fairly said to approach the instant verdict in amount. This interesting but inconclusive disclosure may, perhaps, have been the result of evidence not fully revealed in the text of the reported decisions. The higher verdicts in those cases were invariably reduced by the trial court, the Supreme Court or by both.
Weighing with care all the evidence in this case independently of the Pennsylvania decisions, but mindful of experience with other cases and familiarity with rulings of other judges upon other verdicts resulting from the application of the same damage rule, it is the conclusion of the trial judge that the verdict of $ 45,000 exceeded the limits of a rational award in the circumstances of this case.
Accordingly an order would be entered setting aside the verdict and judgment and granting the defendants a new trial, except for the entry, necessitated by the defendants' other motions, of the following:
Now, March 10, 1958, it appearing that defendants' motions for directed verdicts should have been granted, the judgments entered on the verdicts in favor of the plaintiff and against the defendants are reopened, and it is ordered and directed that judgments be now entered in favor of the defendants and against the plaintiff as if the verdicts requested by the defendants had been directed.