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decided: October 20, 1978.


No. 2335 October Term 1976, Appeal from the Order of the Court of Common Pleas, Trial Div., Law of Philadelphia County, August Term, 1971, No. 4132, Denying Defendant's Motions for Judgment N.O.V. and a New Trial.


Lewis H. Van Dusen, Jr., Philadelphia, with him Norman M. Hegge, Jr., Philadelphia, for appellant.

Albert W. Sheppard, Jr., Philadelphia, with him Marvin W. Factor, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Cercone, Price and Van der Voort, JJ., concur in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 259 Pa. Super. Page 170]

On May 29, 1970, at approximately 9:30 P.M., appellees Mamie Carswell and Lena Roberts were passengers on a west-bound subway train operated by SEPTA in Philadelphia.*fn1 As the train was leaving the elevated station at 46th Street, appellees saw a "flash" and heard a loud noise and the breaking of glass, all at the window immediately next to

[ 259 Pa. Super. Page 171]

    their seats. In reaction, appellees fell to the floor and were injured.

The cause of the accident was not precisely proved at trial. Appellees testified that as the train started to leave the station they noticed a group of boys standing on the platform opposite their window. They said that they did not see the boys do anything alarming or suspicious; they could say only that the boys were standing and smoking. Appellees' theory was that one of the boys threw a rock or other missile at the window, causing the frightening flash and sound, and the breaking of the window. SEPTA did not dispute that the accident occurred in this way.*fn2

A jury found for Mamie Carswell in the amount of $17,500, for Lena Roberts in the amount of $5,300, and for Napoleon Carswell in the amount of $1,500. SEPTA filed a motion for judgment n. o. v. or new trial, and has appealed the lower court's order denying the motion.

Judgment n. o. v.


Appellant's first*fn3 argument for judgment n. o. v. is stated as: "Neither the Metropolitan Transportation Authorities Act of 1963 Nor the Present Law With Respect to the Liability of Public Agencies Imposes Liability on SEPTA for Criminal Actions by Third Parties." Appellant's Brief at 13. We admit to some difficulty in understanding this statement, for we are not sure what appellant means by the "present law."

Appellant concedes that "the 'measure of care' owed by SEPTA is the same as that which would have rested upon a private owner of the same facility. Stevens v. City of Pittsburgh, 329 Pa. 496, 129 Pa. Super. 5, 198 A. 655 (1938)."

[ 259 Pa. Super. Page 172]

Appellant's Brief at 14. The question, therefore, is how to determine the measure of care so owed. Appellees suggest that the present law governing that determination is as stated in section 344 of the Restatement (Second) of Torts (1965), which is followed in Pennsylvania. Moran v. Valley Forge Drive-In Theatre, Inc., 431 Pa. 432, 246 A.2d 875 (1968). We are persuaded by this suggestion.

Section 344 provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

It may be that appellant does not resist application of section 344 but means to argue that because of its peculiar status as a public authority, it may satisfy its duty under section 344 solely by relying on the protection provided for passengers by the municipal police force. We believe the law to be to the contrary. See Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3d Cir. 1978) ("Although steps had been taken to increase police protection, we cannot say as a matter of law that this was enough to preclude SEPTA's liability."); Restatement (Second) of Torts ยง 344, Comment e (public utility may be required to do more than give warning, and "to take additional steps to control the conduct of the third person, or otherwise to protect the patron against it"); cf. Mangini v. Southeastern Pennsylvania Transportation Authority, 235 Pa. Super. 478, 344 A.2d 621 (1975) ...

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