Carole CARPENTER, Administratrix of the Estate of Darrell Carpenter, Deceased v. PENN CENTRAL TRANSPORTATION COMPANY, Appellant.
Superior Court of Pennsylvania.
Argued Sept. 11, 1978. Filed Aug. 17, 1979.
Reargument Denied Oct. 16, 1979.
409 A.2d 37
William Goldstein, Philadelphia, for appellee.
Before PRICE, HESTER and HOFFMAN, JJ.
PRICE, Judge:
The instant appeal is from a judgment of the trial court in apрellee‘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 whеther 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.
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 apрellant 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.
First, because appellant‘s station was open to the public, the decedent may have been a business invitee. See,
Appellant‘s next three assignments relate to his motion for a new trial based upon alleged errors in the charge to the jury.
The first alleged error arises from the lower court‘s charge involving the principle of “private nеcessity” under Restatement § 197. As stated, sections 197 and 345 of the Restatement establish an exception to the usual trespass rule and provide that a would-be trespasser will be classified as a licensee if he enters onto the land of another and such entry “is or reasonably appears to be necessary to prevent serious harm to . . . the actor, or his land or chattels, . . .” The actual charge of the court below was as follows: “[A] person is privileged to enter the property of another under certain circumstances which otherwise might make him a trespasser when he enters to remove or reclaim his own personal property or for his own personal safety.” (Record at 442a).
Appellant alleges error in the quoted charge in that it established an absolute privilege of private necessity to recover the clothes or to seek safety, without the requirement that the entry be reasonably necessary to prevent serious harm either to the decedent or his clothes. While we agree with appellant‘s analysis of the alleged error, because it did not take exception to the court‘s charge on this basis or request an additional clarifying instruction, that alleged error has not been preserved for appellate review and has been waived. See, e. g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).
Appellant next alleges that the court below omitted the requirement of foreseeability from its charge on the duty to a licensee. As stated, Restatement § 345 creates an exception to the general trespasser rule and provides that if a plaintiff is injured in the exercise of a privilege, he will be classified as a licensee with the concomitant duty on the
“In order for the possessor to be liаble under the rule stated in this Section for failure to warn a person who enters under a privilege arising without the possessor‘s consent, there must be a similar likelihood that ignorance of the condition will endanger the safety of the visitor. Therefore the possessor must knоw or have reason to anticipate that the visitor is upon the land, or will enter it in the exercise of his privilege, and that he will be endangered by the condition.” (emphasis added).
See Tedesco v. Reading Co., 147 Pa.Super. 300, 24 A.2d 105 (1942) (no evidence to alert defendant that decedent would be on property in exercise of privilege). The charge of the court imposed an absolute duty to warn if the decedent was a licensee. No qualification was given that appellant must reasonably anticipate that a potential trespasser will be exercising a privilеge in climbing to the top of the train car. Accordingly, because a corrective instruction was requested but denied, we reverse and remand for a new trial.
Appellant‘s final assignment is that the court below erred in charging on the doctrine of sudden emergency and its rеlationship to the contributory negligence of the decedent. Under that doctrine, the decedent‘s conduct which, under normal conditions, would be deemed contributory negligence will not bar appellee‘s recovery if the decedent was in the midst of a sudden emergency. Instead, the conduct is viewed in the context of the emergency.
“Where one finds himself in a position of danger which is not the result of his negligence, he is not responsible if he make [sic] a mistake of judgment in getting out. An honest exercise of judgment is all that is required of him even if he could have done better if he had had time to deliberate.”
Community Fire Co. v. Pennsylvania Power & Light Co., 92 Pa.Super. 304, 309-10 (1928).
The purpose of the sudden emergency doctrine is to relieve a victim from the sometimes stringent reasonable man standard when he is confronted with аn occurrence that permits no opportunity to apprehend the situation and act accordingly. The doctrine is applied most often in automobile cases in which a driver is confronted with an occurrence requiring some form of immediate, evasive action. See, e. g., Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978); Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975); 3 Troutman, Pennsylvania Negligence, Sudden Emergency (1967).
Instantly, we do not deem the decedent‘s status as one permitting a charge as to the sudden emergency doctrine. As noted in appellant‘s brief and in the dissenting opinion in the court below, the sudden еmergency of the robbery, stabbing and the decedent‘s forced removal of his clothes had run its course once the assailant fled, and the action of the decedent in climbing to the top of the train car to retrieve his clothes was not part of that emergency situation. Indeed, his action in attempting to recover his clothes rather than seek aid for his wound may itself evidence a conscious and deliberate action rather than a reflexive and unconscious re-action to the situation. Nor do we believe that the decedent‘s unclad state would, in the situation here presented, constitute an emergency. Because the area of the station in which the robbery took place was not in use and the decedent was not immediately exposed to others, we must conclude that his situation was not one requiring a
The judgment of the court is reversed and the case is remanded for a new trial consistent with this opinion.
HESTER, J., files a dissenting statement.
HESTER, Judge, dissenting:
I respectfully dissent. In my judgment, in view of all the testimony, the decedent was a trespasser as a matter of law at the time he came into contact with the pantograph. In addition, there was no evidence produced that would establish that appellant was engaged in willful or wanton misconduct. I, therefore, am of the opinion that judgment n. o. v. should have been entered. See, Engel v. Parkway Co., 439 Pa. 559, 266 A.2d 685 (1970); Porreca v. Atlantic Refining Co., 403 Pa. 171, 168 A.2d 564 (1961) and the cases cited therein.