The opinion of the court was delivered by: DUMBAULD
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Following a non-jury trial, the Court makes the following findings of fact and conclusions of law:
1. This is an action under the Federal Tort Claims Act of August 2, 1946, 60 Stat. 842, 28 U.S.C. 2671 et seq. as amended, for injuries sustained by a pedestrian by reason of collision with an automobile driven by Air Corps personnel. It is there provided (28 U.S.C. 2674) that "The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances" (except for pre-judgment interest or punitive damages.)
2. In the case at bar, where the operative events took place in Pittsburgh, Pennsylvania within the Western District of Pennsylvania, this Court has jurisdiction under 28 U.S.C. 1346(b) and 28 U.S.C. 1402(b), and the tort law of Pennsylvania applies. However, because of the specific prohibition of pre-judgment interest in 28 U.S.C. 2674, such interest is not recoverable even though it would be permitted in Pennsylvania state courts ( Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147, 157 (1981) ) and is permitted in federal diversity cases not involving the United States as defendant, pursuant to Jarvis v. Johnson, 668 F.2d 740, 748 (C.A. 3, 1982).
4. Pennsylvania tort law embodies "no-fault" provisions, 40 P.S. 1009.102 et seq., and the rule of comparative negligence, 42 P.C.S.A. 7102(a). Under the latter provision contributory negligence by plaintiff does not bar recovery unless it is greater than the negligence of defendant but damages sustained by plaintiff "shall be diminished in proportion to the amount of negligence attributed to the plaintiff." Under the no-fault provisions, any recovery of tort damages (s 1009.301(a)(4) and (5) ) is to be diminished by the amount of benefits available under no-fault ($ 15,000.00) (s 1009.202(b)(2) ), and by the amount of workmen's compensation paid (s 1009.206(a) ), which in the case at bar is $ 18,160.00.
5. Under present Pennsylvania tort law loss of future earnings or earning power is not to be reduced to present worth, Kaczkowski v. Bolubasz, 491 Pa. 561, 583, 421 A.2d 1027 (1980), and is to be awarded in full without reduction for putative income tax thereon. Girard Trust Corn Exchange Bank v. Phila. Transportation Co., 410 Pa. 530, 538, 190 A.2d 293 (1963).
6. The Pennsylvania motor vehicle code provides (75 P.C.S.A. 3542) that:
(a) When traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.
(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute a hazard.
It is also provided (s 3361) that:
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.
7. At a recognized crosswalk the pedestrian has the superior right of way and motorists are required by the law to be highly vigilant and maintain such control of the vehicle that it can stop on the shortest possible notice. It is only in clear cases where a pedestrian is testing an obvious danger under circumstances which would cause a reasonable person to believe that the operator cannot stop or will not stop in honoring the superior right of way that the pedestrian is guilty of contributory negligence. Smith v. Pittman, 396 Pa. 296, 300-301, 152 A.2d 470 (1959).
8. Pennsylvania law permits recovery for consortium by the spouse of an injured victim. Zagari v. Gralka, 264 Pa.Super. ...