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filed: August 17, 1979.


No. 2394 October Term, 1977, Appeal from the Judgment in the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 1601 February Term, 1975.


William J. McKinley, Jr., Philadelphia, for appellant.

William Goldstein, Philadelphia, for appellee.

Price, Hester and Hoffman, JJ. Hester, J., files a dissenting statement.

Author: Price

[ 269 Pa. Super. Page 11]

The instant appeal is from a judgment of the trial court in appellee's actions under the wrongful death and survival statutes. For the reasons stated herein, we reverse and remand for a new trial.

The facts pertinent to this appeal are as follows. On December 30, 1974, at approximately 9:43 p. m., the decedent, Darrell Carpenter, was found severely burned atop one of appellant's trains in its Philadelphia Suburban Station. According to a statement given by the decedent prior to his death, he had been accosted by an unknown assailant who robbed him at knife point, stabbed him in the leg and forced him to remove all his clothing except his socks and undershirt. The assailant gathered the clothing, threw it atop an adjacent train car and fled. The area of appellant's station in which the attack occurred was not being used at the time, and it is not known whether the decedent was there voluntarily or was forced there by the assailant. The decedent climbed up to the top of the train car to retrieve his clothes and apparently came into contact with the pantograph, a metal structure on top of the train car which transfers the electricity in the lines to the motor in the car. Although the car was not in use, 11,000 volts of electricity continued to flow through the overhead lines.

[ 269 Pa. Super. Page 12]

When the decedent contacted the pantograph, an "explosion" occurred, tripping a circuit breaker in the control center at the 30th Street Station and halting power in the overhead lines. The "power director" at the 30th Street Station immediately re-energized the circuit sending a second 11,000 volt shock through the decedent. The circuit again tripped and power was terminated until the decedent was discovered and removed to the hospital where he died on January 4, 1975. The power director testified that he reactivated the power because "outages" often occurred when birds, falling icicles and other objects came into contact with the wires. In 1974, 1190 "outages" occurred, with only one other caused by a human being coming into contact with the wires. At the time of the incident the pantograph had a two and one-half (2 1/2) by twenty-six and one-half (26 1/2) inch sign on two sides warning "DANGER-DO NOT TOUCH." The decedent stated that the car was dark and he thought that it was abandoned.

At the conclusion of trial, the jury returned a verdict on behalf of appellee in the amount of $150,000. Appellant appeals from that judgment and asserts four assignments of error primarily related to the issue of the decedent's status as a trespasser or licensee, and the appropriate standard of care required of appellant.

Appellant's first assignment is that the court below erred in not granting his motion for judgment n. o. v. This alleged error is predicated upon appellant's claim that as a matter of law, the decedent was a trespasser at the time he came into contact with the pantograph, and because no evidence was offered to establish that appellant engaged in willful or wanton misconduct, see, e. g., Engel v. Parkway Co., 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965); Porreca v. Atlantic Refining Co., 403 Pa. 171, 168 A.2d 564 (1961), judgment n. o. v. should have been entered. We disagree for two reasons.

[ 269 Pa. Super. Page 13]

First, because appellant's station was open to the public, the decedent may have been a business invitee. See, Page 13} e. g., Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970); Crotty v. Reading Industries, Inc., 237 Pa. Super. 1, 345 A.2d 259 (1975); Restatement (Second) of Torts § 332 (1965) [hereinafter cited as Restatement]. Second, assuming arguendo that the decedent's status as an invitee changed to that of a trespasser when he climbed on top of appellant's train to retrieve his clothes, see Restatement, § 332, Comment l. (invitee status exists "only while he is on the part of the land to which his invitation extends . . . ."), an exception exists under Restatement § 345 for one who enters onto the property of another in the exercise of a public or private privilege. Under Restatement § 198, the decedent was privileged to enter "for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent . . . ." Moreover, under Restatement § 197 a person "is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the actor, or his land or chattels . . . ." In both instances the decedent would be ...

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