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July 23, 1986


The opinion of the court was delivered by: BRODERICK


 Plaintiff Harold Toombs commenced this action against Southeastern Pennsylvania Transportation Authority (SEPTA) and two SEPTA employees, cashier Sylvester Manning and driver James Brown, alleging that the negligence of Mr. Manning and Mr. Brown caused an accident in which the plaintiff was struck by a SEPTA subway train. The jury found that the causal negligence of the cashier, Mr. Manning, contributed 80% to the accident, that the causal negligence of the subway train driver, Mr. Brown, contributed 20% to the accident, and that there was no causal negligence on the part of the plaintiff. The jury then returned a verdict of $1,000,000 in compensatory damages in favor of the plaintiff.

 Defendants have filed motions for judgment notwithstanding the verdict, a new trial, and to amend the judgment, on the following grounds: (1) the sufficiency of the evidence; (2) that SEPTA is immune from liability under 42 Pa.Cons.Stat.Ann. § 8521 et seq., or 42 Pa.Cons.Stat.Ann. § 8541 et seq.; (3) that damages may not be assessed against SEPTA in an amount greater than $250,000. pursuant to 42 Pa.Cons.Stat.Ann. § 8528(b) or $500,000. pursuant to 42 Pa.Cons.Stat.Ann. § 8553(b); (4) that the Court erred in its charge to the jury; (5) that the Court erred in evidentiary rulings concerning expert testimony and loss of future earning capacity. Plaintiff has filed a motion to amend the judgment to include delay damages. For the reasons discussed below, defendants' motions for judgment notwithstanding the verdict and/or a new trial will be denied, defendants' motion to amend the judgment will be granted, and plaintiff's motion to amend the judgment will be granted.

 The authority to grant a new trial is confided to the discretion of the district court, whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice para. 59.08[5] at 59-160 (footnote omitted) (2d ed. 1974). See Douglas W. Randall, Inc. v. AFA Protective Systems, Inc., 516 F. Supp. 1122, 1124 (E.D. Pa. 1981), aff'd mem., 688 F.2d 820 (3d Cir. 1982). The district court may not substitute its own judgment for that of the jury simply because the district court might have come to a different conclusion. Randall, 516 F. Supp. at 124. The jury's verdict may be set aside only if manifest injustice would result if it were allowed to stand or if a new trial is required to correct a verdict which was against the clear weight of the evidence. American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S. Ct. 178, 83 L. Ed. 2d 112 (1984); Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1973).

 In order to grant a motion for judgment notwithstanding the verdict (JNOV), the district court

must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). Such a motion "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. " 5A Moore's, supra, P 50.07[2], at 50-77 (footnote omitted); Korvette, supra, at 474.

 Randall, 516 F. Supp. at 1124. "Normally, when the evidence is contradictory, a JNOV is inappropriate." Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802 (3d Cir. 1984) (citing Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 50 L. Ed. 2d 770, 97 S. Ct. 767 (1977)).

 I. Sufficiency of the Evidence

 The plaintiff produced sufficient evidence to support the jury's verdict under either the new trial standard or the JNOV standard. The evidence was uncontradicted that early on the morning of January 3, 1983, plaintiff descended the stairs to the southbound subway platform of the Broad Street and Allegheny Avenue station of the SEPTA Broad Street line, alone. The following was also undisputed: Plaintiff greeted the cashier, Mr. Manning, paid his fare, and waited on the subway platform. Two males came up to the plaintiff and demanded some money. Plaintiff refused, and an argument ensued near the edge of the subway platform. One of the men pulled a knife from his pocket. The argument was witnessed by Sylvester Manning, who was in the cashier's booth. Mr. Manning also saw the knife. Mr. Manning failed to utilize (1) a switch to turn on a light at street level to signal police; (2) a phone to the SEPTA dispatcher; or (3) a button to sound an alarm at the subway platform level; all of which were inside the cashier's booth. Instead, Mr. Manning opened the door of the booth to ask what was going on and to try to calm the situation. The argument continued. Plaintiff did not ask for help. As plaintiff turned his head to look at the oncoming subway train, one of the men gave him a forceful blow to the face or head. Plaintiff ran off with his face in his hands. Shortly thereafter, plaintiff fell or jumped onto the subway tracks and sustained serious injuries when he was struck by the oncoming train. Mr. Manning then called the city police, who arrived within 3-5 minutes.

 The witnesses disputed the lapse of time from plaintiff's arrival on the platform to the beginning of the argument, to the moment the punch was thrown, to the moment the train arrived. There was some uncertainty as to how the plaintiff wound up on the subway tracks.

 The Court instructed the jury that SEPTA, as a common carrier, owes a duty to its passengers to conform to a high degree of care in the services SEPTA undertakes to provide for the benefit of its passengers. The Court further instructed the jury that where a third person acts in a violent, criminal, or negligent manner, the carrier has a duty to protect the passengers to the extent possible. See Mangini v. Southeastern Pennsylvania Transp. Authority, 235 Pa. Super. 478, 481-82, 344 A.2d 621, 623 (1975).

 The plaintiff argued that Mr. Manning, who was instructed by SEPTA in safety and whose booth was equipped with several safety devices, should have called the train dispatcher, signalled the police, or sounded the alarm when he witnessed the foregoing events on the subway platform. The defendants argued that Mr. Manning's handling of the situation was reasonable, that there was not enough time for the SEPTA or city police to answer a call or signal even if these had been utilized, and that the alarm would not have been effective in preventing the accident. The evidence presented a question for the jury as to whether the course of action followed by Mr. Manning was reasonable and whether it was a substantial contributing factor in bringing about the accident. There was ample evidence to support the jury's verdict that Mr. Manning's negligence was a proximate cause of the accident.

 Mr. Brown testified that as a subway train driver, he was trained to be alert to the possibility of confrontations on the platform and to sound his whistle if he saw people standing too close to the edge. Mr. Brown stated that he never saw anything that concerned him, and therefore he never used his whistle. Mr. Brown stated that he did not notice plaintiff until the train was 8-15 feet away from plaintiff, and plaintiff was about to fall or jump onto the tracks. Mr. Brown said he had already applied the brake by this time. Although he testified that he put the brake into the emergency position when he saw plaintiff, the train came to a stop about where it would have stopped anyway.

 Defendants argued to the jury that there was nothing Mr. Brown could have done to avoid the accident. Plaintiff argued that Mr. Brown should have noticed the emergency at an earlier time, when there was an opportunity to bring the train to a shorter stop or to use the whistle. There was a question for the jury as to whether Mr. Brown should have detected trouble on the platform before it was too late. The evidence was sufficient for the jury to find that Mr. Brown should have been prompted to apply the brake at an earlier point or to sound the whistle, and that Mr. Brown's failure to do either was a proximate cause of the accident.

 II. SEPTA's status as a Commonwealth party or a local agency

 The next issue raised by defendants' motions is whether SEPTA is either a "Commonwealth party" or a "local agency" as defined in 42 Pa.Cons.Stat.Ann. § 8501 for purposes of the immunity defined in 42 Pa.Cons.Stat.Ann. § 8521 et seq. or 42 Pa.Cons.Stat.Ann. § 8541 et seq.

 A "Commonwealth party" is defined as "[a] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment." Id. at § 8501. Defendants point out that the Superior Court of Pennsylvania described SEPTA as a Commonwealth agency in Feingold v. Southeastern Pennsylvania Transp. Authority, 339 Pa. Super. 15, 30, 488 A.2d 284, 292 (1985) (citing Pennsylvania Urban Mass Transportation Law of July 10, 1980, P.L. 427, No. 101, § 3, 55 P.S. § 600.191 et seq.). In Feingold, the Superior Court ruled that the Pennsylvania common law rule that punitive damages are not recoverable against a municipality or a Commonwealth agency was applicable to SEPTA. 339 Pa. Super. at 30, 488 A.2d at 292. The court noted that 42 Pa.Cons.Stat.Ann. § 8528, which limits the types of recovery available against a Commonwealth agency, did not govern Feingold because of the effective date of the statute. 339 Pa. Super. at 31 n.4, 498 A.2d at 293 n.4.

 The statute cited by the Superior Court in Feingold defines the powers and duties of transportation authorities in the metropolitan area of Pennsylvania, and provides that

an authority shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the ...

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