Facts
On December 9, 1980, the 36-year-old X. was driving a truck for his employer on the highway. In the Ebenrain Tunnel, his vehicle collided with a stationary freight train that had broken down in the tunnel. X. was killed in the accident and left behind a 33-year-old wife and three minor children.
The widow and her three children sued the liability insurer of the freight train operator for damages and satisfaction. The District Court and the High Court partially awarded compensation to the plaintiffs, whereupon both parties appealed.
Considerations
The Federal Court first examined the fault of the parties involved. It concluded that the deceased X. was to be held responsible for one third, while the freight train driver B. and his employer C. were to be held responsible for two thirds. The Federal Court rejected a complete compensation of fault in favor of the plaintiffs, as this would contradict the basic principle of Art. 44 para. 1 CO.
Regarding the operational risks of the vehicles involved, the Federal Court decided that the defendant as the jointly liable owner must also be liable for the operational risk of X.'s truck. However, the liability privilege of employer A. pursuant to Art. 129 para. 2 GSIA does not lead to a reduction of the plaintiffs' claim, as otherwise the injured party would have to bear the loss.
In calculating the loss of support of the widow, the Federal Court took into account the relevant annual income of the deceased, the widow's quota of 57.5%, and a deduction of 21% due to the prospects of remarriage. For the funeral…