Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 493, in case of Dolores Mangini, a minor by her parent and natural guardian, Dolores Mangini, and Dolores Mangini in her own right and Alice Scarlata, a minor by her parent and natural guardian, Alice Scarlata, and Alice Scarlata in her own right and Deborah Viereck, a minor by her parent and natural guardian, Mary Viereck, and Mary Viereck in her own right v. Southeastern Pennsylvania Transportation Authority.
Matthew J. Ryan, III, with him Lewis H. Van Dusen, Jr., Joseph F. Keener, Jr., and Drinker, Biddle & Reath, for appellant.
Allen L. Feingold, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 235 Pa. Super. Page 479]
The minor plaintiffs in the present action were injured while riding defendant-appellant's trackless trolley when a number of unidentified assailants boarded the vehicle and attacked the passengers. We agree with the court below that the appellant, a common carrier, is liable for the minors' injuries due to the failure of its driver to act to protect his passengers. We will therefore affirm the judgment entered in favor of appellees.*fn1
[ 235 Pa. Super. Page 480]
At the time of the incident the minor plaintiffs were high school students attending St. Maria Goretti High School. In order to get to and from school, these students took the Tasker Street trackless trolley operated by the appellant Southeastern Pennsylvania Transportation Authority [SEPTA]. It is the testimony of both sides that certain neighborhoods through which the trolley must travel to transport the high school students represent a continuous source of violence and danger to buses and passengers. Prior to the incident with which we are here concerned, a number of complaints had been registered with both SEPTA and the police by the parents of children who found it necessary to use this line indicating concern for the safety of the children traveling on the trolleys. In response to these complaints, extra trolleys were run on the route when the school released its students, and the police were requested to superivse the transportation of the children. When available, police cars trailed trolleys carrying students through the dangerous neighborhoods.
There is a conflict in the testimony regarding the incident in which the injuries here complained of occurred. The minor plaintiffs testify that as the trolley pulled up to a stop which was across the street from a playground, a group of boys began to pelt the vehicle with bottles and other objects. When the front doors of the trolley were opened, about five boys boarded without paying a fare and ran down the aisle striking passengers. At the center of the trolley there is another door which
[ 235 Pa. Super. Page 481]
is used as an exit and is operated from the inside by stepping on a treadle. One of the invading boys depressed the treadle step causing the exit doors to open, and another group of approximately 15 more boys rushed into the trolley. These boys joined in the assault on the passengers. At some point during the fray, two of the minor plaintiffs were struck on the head with bottles and lost consciousness. The third was punched in the face. During the assault the passengers shouted to the bus driver urging him to drive on or assist them. The driver allegedly did not respond until the boys had fled from the trolley. He then closed the doors and drove a few blocks to a store where a woman called the police.
The driver of the trolley and other witnesses for SEPTA testify to a somewhat different series of events. The driver stated that he stopped at the corner by the playground in order to allow some passengers to disembark. No boys ran through the front doors when they were opened, but the center exit doors were opened, presumably by a passenger getting out. The driver and other witnesses pointed out that the trolleys are equipped with a safety feature which does not permit the vehicle to move when the central doors are open. Shortly after he stopped, while the trolley was immobilized by reason of the open center doors, the driver heard screaming and commotion among his passengers, and bottles breaking against the outside of the trolley. He was unable to see any fighting due to the people moving around in the aisles. As soon as the doors were closed, he moved the trolley a few blocks away where he called the SEPTA radio room, the center he is instructed to contact when trouble occurs on the route.
There is no dispute that appellant SEPTA is a common carrier and therefore held to the highest degree of care. See Sommers v. Hessler, 227 Pa. Superior Ct. 41, 323 A.2d 17 (1974). A public carrier is not an insurer of its passengers' safety, but liability is ...