No. 1990 Philadelphia, 1982, Appeal from the Judgment Entered on June 8, 1982 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 2249 April Term, 1976
William H. Roberts, Philadelphia, for appellant.
Fredric L. Goldfein, Philadelphia, for appellees.
Cirillo, Beck and Cercone, JJ.
[ 338 Pa. Super. Page 133]
The plaintiffs, Mr. and Mrs. Farnese, brought suit against the Southeastern Pennsylvania Transportation Authority (hereinafter "SEPTA") for injuries allegedly suffered while he was a passenger on a SEPTA bus. SEPTA joined the City of Philadelphia (hereinafter "City") as an additional defendant, averring that the City failed to keep its streets in a state of repair, which precipitated Mr. Farnese's injuries. At the close of evidence the court directed a verdict in favor of the City. The jury returned a verdict in favor of the plaintiffs and against SEPTA. SEPTA filed post-trial motions which were denied by the court sitting en banc. Having settled with plaintiffs, on appeal SEPTA only pursues its claim that the trial court erred in entering a directed verdict in City's favor.
The evidence which was submitted to the jury may be briefly summarized in the following manner. The City was reconstructing Chestnut Street for use as its transit-way. The street had been stripped of its asphalt surface, exposing the rough concrete base. A cold patch was applied to raised intersections and man-hole covers resulting in a tapered surface for vehicles to pass over. On the date of the accident, construction was going on and various pieces of construction equipment and supplies were scattered along the transit way.
SEPTA had requested permission from the City to use the construction area for bus traffic and the City granted the request. The SEPTA bus carrying Mr. Farnese was traveling 35 to 40 miles per hour along Chestnut Street, through the construction zone, when it apparently encountered some object or obstacle causing a sudden up and down jolt to the bus. This jolt threw Mr. Farnese up and down on his seat causing him the injuries for which he sued. The exact point of the accident along Chestnut Street was not specified by any party. Likewise, SEPTA did not allege the exact nature of the cause of the jolt to the bus, other than
[ 338 Pa. Super. Page 134]
the general conditions of the street. It offered no evidence as to the exact cause of the jolt and the cause was never determined.
The trial court directed a verdict for the City reasoning that since SEPTA had offered no evidence that the transitway was unsafe for ordinary traffic and SEPTA had failed to allege or show what the bus had struck, it therefore failed to show the City was responsible for such obstacle.
The law is clear that at trial defendant (SEPTA) had the burden of proving by a fair preponderance of the evidence that the additional defendant, the City was negligent and that its negligence was the proximate cause of the accident. Flagiello v. Crilly, 409 Pa. 389, 390, 187 A.2d 289 (1983) (citations omitted). Further, the law is clear that "when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, in order to prevail, 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 therefrom which are inconsistent therewith." Id., 409 Pa. at 391, 187 A.2d at 290. Proximate causation is a question of law based on policy and immediate or actual causation is a question of fact for the jury. See Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973).
The real issue in this case is how much and what kind of circumstantial evidence is sufficient to raise not only the inference of negligence on the part of the City but also to raise the inference of a causal connection between the City's negligence and the injury which occurred. To prove possibility only or to leave the issue to surmise or conjecture is never sufficient to sustain a verdict. Moyer v. Ford Motor Co., 205 Pa. Super.Ct. 384, 209 A.2d 43 (1965). Where there is no evidence of or the evidence is insufficient to justify an inference of negligence and causation, the court ...