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decided: July 20, 1965.


Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1959, No. 699, in case of Nan Evans, administratrix of estate of Frank J. McFarlane, deceased, v. Philadelphia Transportation Company.


Philip Price, with him William J. McKinley, Jr., George J. Miller, and Dechert, Price & Rhoads, for appellant.

S. Gerald Litvin, with him Abraham E. Freedman, and Freedman, Borowsky and Lorry, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting and Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen.

Author: Eagen

[ 418 Pa. Page 569]

In the early evening of July 28, 1958, F. J. McFarlane (decedent) entered the Second Street station

[ 418 Pa. Page 570]

    of the Market Street subway of the Philadelphia Transportation Company (PTC), in Philadelphia. After paying his fare, decedent entered upon the station platform provided for westbound trains.*fn1 In some unexplained manner,*fn2 the decedent fell upon the subway tracks. At the time of the accident, decedent was lying in the space between the rails of the westbound track with "one leg and part of a foot" on one rail. While lying in that position, decedent was struck by a PTC westbound train and sustained very serious personal injuries.

Decedent instituted a trespass action in the Court of Common Pleas No. 2 (heard in Common Pleas No. 3) of Philadelphia County against PTC. Some nine months later and prior to trial, decedent died, his personal representative was substituted as the plaintiff of record, and the complaint in the action was amended to aver that the accident caused decedent's death. After a trial before a court and jury, the jury returned a verdict in favor of decedent's personal representative

[ 418 Pa. Page 571]

(appellee), and against PTC in the amount of $93,500. Motions for judgment n.o.v. and a new trial were dismissed. From the judgment entered on the verdict, this appeal was taken.

On this appeal, PTC seeks (a) a judgment n.o.v. or, in the alternative, (b) a new trial.

Judgment n.o.v.

Since the decedent did not place himself voluntarily on the tracks, he was not a trespasser; however, since he was not invited thereon and his presence was not to be anticipated, the extent of PTC's obligation toward him was no greater than if he were a trespasser: Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A.2d 576 (1940). The legal obligation to trespassers is the avoidance of wilful or wanton misconduct: Geelen v. Pennsylvania R. R. Co., 400 Pa. 240, 161 A.2d 595 (1960), and Frederick v. Philadelphia Rapid Transit Co., supra. Therefore, the crucial question in the determination of whether or not judgment notwithstanding the verdict should be entered herein is: Was the evidence sufficient to warrant a finding of wanton misconduct on the part of the defendant which was the proximate cause of the accident. It is our conclusion that it was, and that the lower court was correct in submitting the issue to the jury.

It is elementary that in passing upon the sufficiency of the evidence for the purposes of such a motion, we must give the jury winner the benefit of every fact and inference of fact which may be reasonably deduced from the evidence: Gregorius v. Safeway Steel Scaffolds Company, 409 Pa. 578, 187 A.2d 646 (1963).

The only eyewitness to the happening of the accident involved who testified at trial was the operator of the subway train, W. R. Forsythe. He was called

[ 418 Pa. Page 572]

    by the appellee to testify on direct examination.*fn3 His version of the occurrence, since it was not contradicted or impeached by other evidence, is binding upon the appellee.*fn4

Forsythe testified that the train involved consisted of five cars and that, as it rounded the curve coming into the station, it was "coasting" and traveling at a speed of no more than ten miles an hour. The track area along the station platform was well lighted, and in addition, the headlight on the train illuminated the tracks for a distance of 200 feet ahead. He specifically stated that he did not realize that there was a human being lying in the tracks until "the last moment" and that it was then too late to stop the train in time to avoid the accident. If his testimony were limited to this explanation, the plaintiff would have not made out a case. See, Zawacki v. Pennsylvania R. R. Co., 374 Pa. 89, 97 A.2d 63 (1953). However, in another portion of his testimony Forsythe admitted seeing "an object" lying between the rails when the train was still 88 feet distant therefrom, and in still another instance, he stated that he first saw "the object" when the train rounded the curve leading to the station platform, or from a distance of 168 feet away. In either

[ 418 Pa. Page 573]

    event, 168 feet or 88 feet, both were points at which the train could have been stopped safely before striking the decedent. The train was traveling at about 10 miles an hour and the evidence established that it could have been stopped within a distance of 24 to 38 feet. It did not so stop and continued on until 65 to 70 feet of the train had passed over the decedent's body. Under such facts, it was for the jury to say whether or not wanton misconduct was present.

Appellant contends that in order for wanton misconduct to exist it was necessary to establish that the train's operator had actual knowledge of the decedent's presence on the tracks for a sufficient period of time before the accident to give him a reasonable opportunity to take means to avoid the accident, and that the evidence is fatally lacking in this respect. As pointed out before, the evidence is clear that the operator saw an unusual object lying in the tracks in the path of the train at a time when it was sufficiently far away to stop and avoid the accident. On the basis thereof, the jury would be warranted in finding that a reasonable man, operating this train, would have been more diligent in trying to ascertain the particular nature of the object which he knew to be within the range of his unchangeable path, and the failure to do so, especially in view of the contiguity of the passenger platform, was a reckless disregard for the safety of anyone who might be there. This, in our opinion, would constitute wilful misconduct.

It is true that in several instances this Court has described wilful misconduct as a reckless disregard for the trespasser's safety after actual knowledge of his peril. See, e.g., Davies v. Delaware, L. & W. R. R. Co., 370 Pa. 180, 87 A.2d 183 (1952). However, these decisions have all erroneously equated wilful misconduct with wanton misconduct, used the terms interchangeably and ignored the patent difference. Correctly

[ 418 Pa. Page 574]

    speaking, wilful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Wanton misconduct, on the other hand, "means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences . . . ." Prosser, Torts § 33 at 151 (2d ed. 1955).

Other decisions of this Court have recognized that actual prior knowledge of the injured person's peril need not be affirmatively established to constitute wanton misconduct. These cases, as well as the Restatement of Torts, clearly indicate that if the actor realizes or at least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the existing danger.

Restatement, Torts § 500, defines "Reckless Disregard of Safety"*fn5 to exist if the actor "intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him." (Emphasis added.)

[ 418 Pa. Page 575]

Comment d thereto states that if the conduct involves a high degree of chance that serious harm will result, that fact, that he knows or has reason to know that others are within the range of its effect, is conclusive of his recklessness.

This section of the Restatement is quoted with approval in Turek v. Pennsylvania R. R. Co., 369 Pa. 341, 85 A.2d 845 (1952),*fn6 but recovery was denied because there was no evidence from which a finding could have been made that "defendant's engineer, from the facts known to him, should have realized the imminent danger . . . ." (Emphasis added.) This case involved a derailment, and there was no positive testimony as to speed, defective equipment or other matters from which the engineer should have been aware of the forthcoming danger.

The above language in Turek, supra, is also cited with approval in Zawacki v. Pennsylvania R. R. Co., supra, wherein no recovery was allowed because the facts did not permit an inference that the engineer must have had notice of the plaintiff's peril, distinguishing Peden v. Baltimore & Ohio R. R. Co., infra, factually.

Bowman v. Pennsylvania R. R., 299 Pa. 558, 149 A. 877 (1930), adopts this theory also, but by negative inference. That was a case where a high-speed train collided with the rear end of another train preceding it which had stopped along the track.*fn7 The Court held that there was no evidence to support a finding of wanton misconduct because there was no evidence to show that a warning light along the track (designed to warn

[ 418 Pa. Page 576]

    of blockage on the track ahead) was functioning at the time of the accident. The inference was that, if it had been proved that the light was functioning, then to ignore it would have been wanton misconduct, showing a reckless disregard for the safety of those on the track ahead. The Court implied that this would have been the result though there was no actual knowledge of the peril (i.e., even though the stopped train itself had not been seen until it was too late to avoid the collision). The crucial point, then, in determining wantonness would seem to be whether or not the actor had sufficient warning of the possibility of peril. And actual knowledge thereof would thus constitute only one manner of apprisal, along with other various means.

Gray v. Pennsylvania R. R. Co., 293 Pa. 28, 141 A. 621 (1928), and Conn v. Pennsylvania R. R., 288 Pa. 494, 136 A. 779 (1927), further add to the reasonableness of this interpretation of the requirement of actual knowledge. In each, the primary concern was whether or not the evidence supported a finding that a "permissive crossing" had been established over the railroad's right of way. And, in Gray, supra, it was said that ". . . no warning was required unless it was shown that the trainmen knew or should have known of the presence of the boys on the track . . . ." (Emphasis added.) Thus, the reasonable inference is that the establishment of a permissive crossing is another manner of bringing home to the train's operator the possibility of peril (since a property owner owes no more duty to a gratuitous licensee than he does to a trespasser). To the same effect, see Koontz v. Baltimore & Ohio R. R. Co., 309 Pa. 122, 163 A. 212 (1932).

Peden v. Baltimore & Ohio R. R. Co., 324 Pa. 444, 188 A. 586 (1936), and Cover v. Hershey Transit Co., 290 Pa. 551, 139 A. 266 (1927), offer a different manner of arriving at the same result by allowing the jury to find from the physical facts that, in fact, the train

[ 418 Pa. Page 577]

    operators did see the plaintiffs' perils, when their testimony had been that they had not seen the peril until it was "too late". While giving lip service to the oftstated rule that actual knowledge was requisite, the Court in each case allowed an inference to be drawn that one who looks cannot say that he did not see that which he must have seen.

In Geelen v. Pennsylvania R. R. Co., supra, it was stated that under the facts of the case actual prior knowledge on the part of the railroad engineer was necessary, but that such could be inferred from the existing circumstances.

Frederick v. Philadelphia Rapid Transit Co., supra, is particularly applicable. In that case, the operator of the train and its conductor were told that the plaintiff had fallen beneath the wheels of the train, and, thereafter, both the conductor and the operator made a search to determine whether the plaintiff was still there. Not finding him, they continued on their way, running the train over plaintiff and causing him serious injuries. There, this Court held that it was for the jury to determine whether defendant's employees had been put on notice of plaintiff's peril, and if so, whether they were diligent enough in protecting plaintiff after such notice. As here, the plaintiff was treated as a trespasser, but nonetheless a jury verdict was reinstated in his favor.

Applying the holdings and reasoning of the foregoing authorities to the present case, it is clear that the evidence was sufficient to establish that the motorman was in possession of sufficient facts to put a reasonable man on notice of an impending peril and it was for the jury to say whether or not, having such knowledge, he acted with a reckless disregard for the safety of anyone who might be endangered.

The motion for judgment n.o.v., therefore, was properly overruled.

[ 418 Pa. Page ...

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