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filed: November 28, 1986.




Barbara Axelrod, Deputy City Solicitor, Philadelphia, for appellant (at 1053) and for appellee (at 1054).

E. Parry Warner, Philadelphia, for appellants (at 1054) and for appellees (at 1053)

James E. Beasley, Philadelphia, for appellees.

Cirillo, President Judge, and Rowley and Wieand, JJ. Wieand, J., dissents.

Author: Cirillo

[ 359 Pa. Super. Page 60]

This case involves consolidated appeals from an order of the Court of Common Pleas of Philadelphia County, sitting en banc, denying the post-trial motions of appellant, City of Philadelphia (hereinafter "City"), and appellants, Andrew L. Lewis and Joseph L. Castle, trustees for the Reading Company (hereinafter referred to collectively as "Reading").

Appellees, Edward Scarborough and his mother, Patricia Scarborough, instituted this action in 1976 against Reading

[ 359 Pa. Super. Page 61]

    to recover for personal injuries sustained by Edward in a railroad train accident which occurred in 1974. Reading joined the City as an additional defendant and the case proceeded to a jury verdict in favor of the Scarboroughs and against both defendants.

The facts may be summarized as follows. On June 24, 1974, Edward Scarborough, then nine years of age, was playing basketball at the end of a dead-end street owned and maintained by the City. The ball rolled through a hole in the fence and continued down an embankment which lead to a right of way and then to railroad tracks owned and operated by Reading. There was a path leading down the slope toward the tracks. Edward climbed or slid through the hole in the fence and followed the ball down the embankment. As he was going to retrieve the ball, Edward heard a train passing by. Edward retrieved the ball and carried it back to the fence, but then turned and walked back down the embankment. Edward boarded a moving train car and rode for a minute or two. Edward attempted to jump off the train, but fell underneath the wheels. Both of Edward's legs were amputated.

On appeal, both Reading and the City argue that the appellees failed to establish a legally cognizable cause of action and that judgment n.o.v. should have been granted. In addition, the City raises numerous issues in support of its argument that a new trial must be granted and, alternatively, argues that the verdict was excessive and that delay damages were improperly imposed. We will consider each appeal separately.

I. The City's appeal

We first consider the City's contention that it was entitled to judgment n.o.v. As stated by our Court in Walsh v. Pennsylvania Gas and Water Company, 303 Pa. Super. 52, 58, 449 A.2d 573, 576 (1982):

In reviewing the denial of a motion for judgment N.O.V., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the

[ 359 Pa. Super. Page 62]

    verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, "A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper . . . ." Martin v. Soblotney, 296 Pa. Super. 145, 442 A.2d 700 (1982).

In its appellate brief, the City argues that the Scarboroughs failed to present a legally cognizable cause of action because, as a matter of law, the City as a property owner owes no duty to those who cross its land and are subsequently injured by a dangerous condition on the property of another. We hold that issues relating to the nature and source of the common law duty owed by the City to Edward Scarborough are not preserved for our review.

Our review of the record reveals that the City failed to present argument in its post-trial brief concerning the source, existence, or nature of the duty owed by the City to Edward Scarborough. Instead, the City's post-trial brief addresses the issue of the existence of a causal connection between Edward's injuries and the City's breach of some unspecified duty.*fn1 The existence of that duty, for the purposes of the City's post-trial brief, was apparently considered a foregone conclusion.*fn2 In our view, the City's failure to brief the critical duty issue at the close of the proceedings deprived the trial court of both the need and opportunity to address the merits of the City's post-trial

[ 359 Pa. Super. Page 63]

    contentions in this regard. Thus, we conclude that the common law duty issues, as raised now by the City on appeal, are waived and may not serve as a basis for relief.*fn3

[ 359 Pa. Super. Page 64]

Moreover, even if the City's common law duty arguments were properly preserved for our review, it is clear that such arguments would afford no basis for reversal of the trial court's refusal to grant the City's motion for judgment n.o.v. The City argues that its liability could not have been premised upon Section 339 of the Restatement (Second) of Torts inasmuch as the train was not located on the City's land and the City was not in possession or control of the right-of-way.*fn4 We agree. Kearns v. Rollins Outdoor Page 64} Advertising, Inc., 89 Pa. Commw. 596, 492 A.2d 1204 (1985); Cousins v. Yeager, 394 F.Supp. 595 (E.D.Pa.1975). However, it is clear that the trial court also agreed with this statement of law, and, in accordance with the City's request, specifically charged the jury to that effect. Indeed, the trial court carefully limited the applicability of Section 339 to the issue of Reading's liability:

Now, members of the jury, a possessor of land -- and in this case the railroad possessed the land on which their tracks were, the embankment in this case; the City was the possessor of the bed of 13th Street -- but this I am telling you with regard to the issue with regard to the railroad. A possessor of land is subject to liability for physical harm to children trespassing thereon, even though they are trespassing, there is still liability with regard to children trespassing thereon caused by an artificial condition upon the land, if all of the following requirements or conditions are met. That is, the plaintiff under this theory must prove all of the following five conditions in order to prove that the Reading Company was negligent, even though he was a trespasser. Remember, I told you hopping on the train would be a trespasser. These would be your five conditions . . .

Under Pennsylvania law, the attractive nuisance doctrine does not extend to impose liability on landowners for conditions which exist on an adjoining third party's property. That is correct and affirmed for our purposes. Under Pennsylvania law, a defendant who owns land adjacent to a railway has no duty to erect a fence or other protective devices or to provide warnings to protect children who live or play on its land.

Under the law in Pennsylvania, a landowner is under no duty to a person who passes over his land as to a possible

[ 359 Pa. Super. Page 65]

    dangerous condition on the land of another. That is the law of Pennsylvania.

In light of the above, it is obvious that the City's liability was not premised on Section 339. Therefore, even if this argument had been preserved, the City is without cause to complain on appeal that the trial court erred in refusing to grant judgment n.o.v. based upon the inapplicability of Section 339.

Similarly, we are not persuaded by the City's argument that judgment n.o.v. should have been granted because a duty to erect the fence was improperly imposed upon the City. It is well settled that the law imposes no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party's property. Kearns v. Rollins Outdoor Advertising, Inc., supra; Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Heller v. Consolidated Rail Corporation, 576 F.Supp. 6 (E.D.Pa.1982), aff'd 720 F.2d 662 (3d Cir.1983); Cousins v. Yeager, 394 F.Supp. 595 (E.D.Pa.1975). Indeed, as the City aptly points out, it would be incongruous to impose such a duty upon adjacent landowners when no such duty is imposed upon the owner of the land in which the dangerous condition exists. It has long been held that a railroad has no duty to erect fences on its right of way to deter trespassers. Dugan v. Pennsylvania R.R. Co., 387 Pa. 25, 127 A.2d 343 (1956); Malischewski v. Pennsylvania R.R. Co., 356 Pa. 554, 52 A.2d 215 (1947). However, this argument is of no moment in the instant appeal. A review of the record reveals that, again, the trial court agreed with these statements of law and, again, charged the jury to that effect in accordance with the City's request. (See above quoted portion of the trial court's charge). Thus, the City is without cause to complain that a duty to erect fences or install warnings was somehow imposed upon it. In addition to not being preserved for our review, the City's argument that it was entitled to judgment n.o.v. on this basis is without merit.

[ 359 Pa. Super. Page 66]

The City may have had cause to complain on appeal that its duty was premised upon Section 323 of the Restatement (Second) of Torts.*fn5 With respect to this theory of liability, the trial court charged the jury as follows:

If, having undertaken to maintain the fence there was a failure to exercise reasonable care, and if harm is suffered because of the other's reliance upon that undertaking, ...

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