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ADELE LITWINKO v. JAMES GRAY (07/13/79)

decided: July 13, 1979.

ADELE LITWINKO
v.
JAMES GRAY, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, WILLIAM SOMMERS, AND THE CITY OF PHILADELPHIA. APPEAL OF SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



No. 2282 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 2054 October Term, 1970.

COUNSEL

J. Shane Creamer, Philadelphia, for appellant.

No brief filed for appellee Gray.

No brief filed for appellee Litwinko.

Barbara Axelrod, Assistant City Solicitor, Philadelphia, for appellee City of Philadelphia.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 267 Pa. Super. Page 543]

The instant appeal is from an order of the court below granting a directed verdict and point for binding instructions on behalf of appellee, the City of Philadelphia, and denying the motion of appellant Southeastern Pennsylvania Transportation Authority (SEPTA) for a new trial. For the reasons stated herein, we reverse the order of the court below.

The facts giving rise to this appeal are as follows. On October 8, 1969, at or about 6:40 a. m., plaintiff was a passenger on a "Route 36" streetcar operated by defendant, Sommers, an employee of SEPTA. The streetcar was traveling along Island Road in the City of Philadelphia. At the

[ 267 Pa. Super. Page 544]

    intersection of Island Road, 74th Street, and Buist Avenue, it stopped and Sommers opened the door to permit the passengers to exit. Upon alighting, plaintiff and a second passenger were immediately struck by the left front fender of a motor vehicle operated by the defendant, James Gray. The Gray vehicle had also been travelling on Island Road in the same direction as the streetcar. At the time of the accident, the green light at the intersection was in favor of Gray and the streetcar. At trial, SEPTA conceded that the intersection at which the streetcar stopped was dangerous, due, inter alia, to the heavy volume of traffic, to the fact that cars "hot rodded" on Island Road, and because, at the time of the accident, passengers alighting from the streetcar had to cross three lanes of traffic to get to safety. Since the accident, the city has erected a special "safety island" at which passengers are now discharged.

After presentation of the evidence, the court below granted the City of Philadelphia's motion for a directed verdict and point for binding instruction. The jury subsequently found SEPTA and Gray to be liable in the amount of $70,000; the driver of the streetcar, Sommers, was found not to be liable. SEPTA appeals from the order of the court and alleges that the jury should have been permitted to determine whether the City of Philadelphia was ...


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