Kiely v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 29 May 1979
• Citation: 264 Pa.Super. 578,401 A.2d 366
• Parties: Katherine KIELY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
• Court: Pennsylvania Superior Court

Page 366

401 A.2d 366

264 Pa.Super. 578

Katherine KIELY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 14, 1978.

Decided Jan. 26, 1979.

Rehearing Denied May 29, 1979.

Joseph F. Keener, Jr., Philadelphia, for appellant.

Robert T. Lynch, Philadelphia, for appellee.

Before VAN der VOORT, WATKINS and MONTGOMERY, JJ.

MONTGOMERY, Judge:

In this action of trespass for personal injuries sustained by plaintiff-appellee, Katherine Kiely, as she was entering appellant's (SEPTA) 69th street terminal building in the city of Philadelphia, a jury returned a verdict in her favor. A Board of Arbitrators had previously rendered an award in favor of SEPTA from which she had appealed to the Common Pleas Court. Posttrial motions having been denied and judgment entered on the verdict, this appeal followed.

Aside from certain alleged trial errors, the basic issue before this court is, what duty SEPTA owed plaintiff and whether it violated that duty. Appellant contends it owed plaintiff only the duty to exercise reasonable care for her safety and not the highest degree of care it owes to its passengers; and that there was no violation of any duty to her, which entitled SEPTA to judgment N. O. V., or in the alternative a new trial for the alleged trial errors.

In an appeal from the denial of a motion for a judgment n. o. v., the evidence must be viewed in the light most favorable to the verdict winner; evidence supporting the verdict is considered and the rest is rejected; and all conflicts in testimony are resolved in favor of the verdict winner. Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 A.2d 480 (1978).

Viewing the evidence in accordance with the foregoing rules, the acceptable factual situation as to how the accident occurred would be as follows: On Saturday morning, September 15, 1973, Mrs. Kiely, aged 69, intending to become a passenger on a SEPTA trolley, entered SEPTA's 69th street terminal building through a double door which opened inward or in the direction she was walking. The doors were controlled by a piston type device containing oil which determined the force with which the doors closed on their return to their closed position after having been opened. As Mrs. Kiely approached the doors, other people were going through the same doors, one of whom released the door from a fully opened position. Before Mrs. Kiely could raise her hand to check its closing, the left door struck her on the left knee fracturing her knee cap and knocking her to the concrete floor which she struck with the back of her head causing a concussion as well as an abrasion and some swelling. Mrs. Kiely, the only witness who testified to the accident, stated that as she approached the doors "they were part open. Whoever was going ahead of me, the lady that was going ahead of me, she opened it full force and let it slam back, the door hit me and I was knocked out completely." Mrs. Kiely was ready to go through the door to enter the terminal when someone who was in front of her " held it back so far, and then left it go." She was carrying her handbag and stole on her left arm as she reached for the door with her right hand as it was half-way open, but she could not say whether she touched the door with her right hand.

There is a difference in the views of the parties on the question of the measure of care SEPTA owed to Mrs. Kiely under the circumstances. Appellant argues that the standard of care is to be found in the Restatement of the Law of Torts, Section 343:

A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon it, but only if he (a) knows, or by reasonable exercise of reasonable care could discover, the condition which is known to him, he should realize as involving an unreasonable risk to them.

Citing Lanni v. P. R. R. Co., 371 Pa. 106, 88 A.2d 887 (1952).

The appellee disagrees with this view of the law and argues that as soon as she entered the SEPTA terminal with the intention of boarding a SEPTA trolley, the relationship of passenger and common carrier began and continued until she reached her destination, the Villanova Station, and that this compelled appellant to exercise the highest degree of care in safeguarding her, although not an insurer of her safety. In support of her position, she cites Hamley v. George, 365 Pa. 543, 76 A.2d 181 (1950), and Powell v. Philadelphia and Reading Railway Co., 220 Pa. 638, 70 A. 268 (1908).

This case was tried on the view advanced by appellee. The jury was charged that SEPTA owed Mrs. Kiely,...