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decided: June 29, 1979.


No. 635 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Civil Trial Division, dated December 7, 1977 as of June Term, 1970, No. 2307.


Robert J. Spiegel, Philadelphia, for appellant.

Louis Samuel Fine, Philadelphia, for appellee.

Cercone, President Judge, and Spaeth and Lipez, JJ. Spaeth, J., files a concurring opinion. Lipez, J., files a dissenting opinion.

Author: Cercone

[ 267 Pa. Super. Page 385]

A jury in the Court of Common Pleas of Philadelphia County awarded Robert Canery a verdict of $375,000 for injuries he sustained in an accident involving the Southeastern Pennsylvania Transportation Authority (SEPTA). SEPTA filed motions for judgment n. o. v. and for a new trial which were denied. This appeal followed. We affirm the decision of the lower court.

Sometime after midnight on October 16, 1969, the appellee, Robert Canery, was returning home from a visit with his aunt. He proceeded to the North Philadelphia subway station and sat down on a bench to wait for a train. Canery was suffering from a severe headache which was the result of shotgun injury he had received prior to that date. After waiting approximately twenty minutes, Canery heard a train approaching and saw the train light. He walked to within 12 inches of the edge of the platform as the train came out of the tunnel approximately 400 feet away. Canery testified he "passed out," and the next event he remembers is being in the hospital. Canery suffered a head injury, a blow to the lower back, and severance of part of one foot. Subsequent operations and treatment required the amputation of the toes on the injured foot and several skin grafts.

Walter Harrison, the conductor on a south-bound train that passed through the North Philadelphia Station after the accident, testified that he heard screams and saw a man lying on the platform. He went over to the injured man located on the platform, observed that he had been hit by a train, and then telephoned his dispatcher and the police. When the police arrived, they also found Canery lying on the edge of the platform. The officers saw his wallet and one shoe in the track area below, but no one testified that blood was found near the tracks.

According to the treating physician who testified, Canery's injured foot was covered with a lot of grease, presumably from the wheel of the train. The doctor concluded the injury to the foot was a "degloving" one whereby the skin was pulled from the bones since the foot was pinched by the subway wheel.

[ 267 Pa. Super. Page 386]

Jasper Pressley, the SEPTA motorman who operated the train involved in the accident, testified that he did not observe anyone either on the tracks, in front of the train, or on the platform as he proceeded through the station where Canery was injured. He said he did not hear a scream but was notified by the dispatcher at the end of the line that someone had been injured. The train operated by Pressley was a "work" train that did not stop for passengers. Pressley testified he did not stop or slow up as he passed through the station, but proceeded at a constant speed of 20 miles per hour. The manager in charge of training personnel for SEPTA testified that all motormen are instructed to slow up as they proceed through a station and give a warning signal in case anyone moves dangerously near the train on the platform or falls in front of the train.

Based on these facts, the jury found for the injured plaintiff, Canery. Appellant now asks us to review two main issues: first, whether the lower court erred in denying its motion for judgment n. o. v.; and second, whether a new trial should be granted on the grounds that the verdict was against the weight of the evidence, the verdict was excessive, and the court's charge on wanton misconduct was in error.


In our review of the denial of a motion for judgment n. o. v. it is important to note that such a motion may only be entered

[ 267 Pa. Super. Page 387]

"in a clear case where the evidence is insufficient to sustain a verdict against him. Stewart v. Chercnicky, 439 Pa. 43, 266 A.2d 259 (1970). Judgment n. o. v. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. This method of attacking the verdict may never be utilized so as to invade the province of the jury, especially where that determination is based partly on questions of conflicting testimony and credibility of witnesses. Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965); Axilbund v. Page 387} McAllister, 407 Pa. 46, 180 A.2d 244 (1962). Where such questions were determined by the trier of fact, and if there is reasonable support for the verdict which was rendered, a judgment n. o. v. will not be granted . . ." Eldridge v. Melcher, 226 Pa. Super. 381, 385-86, 313 A.2d 750, 753 (1973).

In arguing for judgment n. o. v., appellant claims that its motorman was attentively operating the work train at a reasonable rate of speed through the station and had no knowledge or reason to know of anyone on or near the tracks. Therefore, the mere happening of an accident does not raise an inference of negligence nor put the motorman's actions within the category of willful or wanton misconduct. Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966); Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963).

The issue is not as easily disposed of as appellant would suppose. Since Canery testified that he "passed out" prior to the accident, the only other person present at the scene of the accident was the motorman, Pressley, who claims he neither saw nor heard anyone. In such a situation, circumstantial evidence must be used in order to reach a reasonable conclusion. In order for the party with the burden of proof to prevail when relying on circumstantial evidence, the evidence "must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact finder any other evidence and reasonable inferences . . . which are inconsistent . . ." Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 139, 153 A.2d 477, 480 (1959); see also Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971).

Based on the circumstantial evidence presented in this case, the parties argue that the accident could have occurred in one of two ways: first, Canery could have passed out on the platform and been hit by the moving train while on the platform. If the accident occurred in this way, the duty appellant owed Canery was that of a business visitor. A showing of negligence, or lack of due care, would then be

[ 267 Pa. Super. Page 388]

    sufficient to find appellant liable. Second, appellee could have passed out and fallen on the tracks. The standard owed Canery in that instance is only that due a trespasser and the motorman could only be liable if there was a finding of willful or wanton misconduct. Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1955).*fn1

We conclude that the weight of the evidence supports the theory that the accident occurred while Canery was on the platform. Harrison, the conductor on the train that passed through the station after the accident, and the police undeniably saw appellee on the platform. This is highly credible evidence on the part of these two participants as related to their efforts to assist Canery. The doctor who gave his conclusion as to where appellee was at the time of the accident did not observe him at the scene but merely drew his conclusion from the nature of the foot injury. However, Canery's head, back, and other parts of his body were also affected by the impact. Thus, the evidence on which the jury could base its verdict clearly supports the facts that Canery was on the platform when the accident occurred.

In keeping with this conclusion, the correct legal theory upon which the case should proceed is that of negligence. The evidence preponderates in favor of the appellee to the extent that the jury could have inferred negligence on the part of the SEPTA motorman. In the case before us, the manager of training for SEPTA testified that all motormen are to sound a warning signal and slow down as they pass through a station. Pressley's testimony of his actions was in direct contradiction to these instructions. The motorman testified that he neither sounded a warning signal nor reduced his speed when traveling through the North Philadelphia

[ 267 Pa. Super. Page 389]

Station, but proceeded at a reasonable rate of 20 miles per hour. Appellant argues that 20 m. p. h. is a reasonably safe speed at which to proceed through a station and therefore it was not necessary to reduce speed. The failure to reduce speed in the face of its danger to the life or limb of another is no excuse against the charge of negligence. There was no speedometer on the train involved in the accident, and therefore the alleged speed of the train was based on Pressley's judgment and veracity. The credibility of this testimony was for the jury to ...

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