235 Pa. Super. 478 | Pa. Super. Ct. | 1975
Opinion by
The minor plaintiffs in the present action were injured while riding defendant-appellant’s trackless trolley when a number of unidentified assailants boarded the vehicle and attacked the passengers. We agree with the court below that the appellant, a common carrier, is liable for the minors’ injuries due to the failure of its driver to act to protect his passengers. We will therefore affirm the judgment entered in favor of appellees.
There is a conflict in the testimony regarding the incident in which the injuries here complained of occurred. The minor plaintiffs testify that as the trolley pulled up to a stop which was across the street from a playground, a group of boys began to pelt the vehicle with bottles and other objects. When the front doors of the trolley were opened, about five boys boarded without paying a fare and ran down the aisle striking passengers. At the center of the trolley there is another door which
The driver of the trolley and other witnesses for SEPTA testify to a somewhat different series of events. The driver stated that he stopped at the corner by the playground in order to allow some passengers to disembark. No boys ran through the front doors when they were opened, but the center exit doors were opened, presumably by a passenger getting out. The driver and other witnesses pointed out that the trolleys are equipped with a safety feature which does not permit the vehicle to move when the central doors are open. Shortly after he stopped, while the trolley was immobilized by reason of the open center doors, the driver heard screaming and commotion among his passengers, and bottles breaking against the outside of the trolley. He was unable to see any fighting due to the people moving around in the aisles. As soon as the doors were closed, he moved the trolley a few blocks away where he called the SEPTA radio room, the center he is instructed to contact when trouble occurs on the route.
There is no dispute that appellant SEPTA is a common carrier and therefore held to the highest degree of care. See Sommers v. Hessler, 227 Pa. Superior Ct. 41, 323 A.2d 17 (1974). A public carrier is not an insurer of its passengers’ safety, but liability is imposed for injuries resulting from negligent conduct on the part of
In the present case, appellant SEPTA has argued that the evidence is insufficient to show that prior to the injury the offensive individuals indicated a violent disposition sufficient to alert the driver to act for the protection of his passengers.
It has been held to constitute a breach of duty on the part of a common carrier operating a bus line when the employee driver failed to control the passengers in an overcrowded bus, and as a result a passenger was knocked down and injured while attempting to disembark through the crowd. La Sota v. Philadelphia Transp. Co., supra. Similarly, in Gerlach v. Pittsburgh Rys. Co., supra, the carrier was found liable for injuries sustained by some passengers who became involved in a fight with other passengers, when the belligerent attitude of the assailants should have been apparent to the defendant carrier’s conductor. In both these cases, and in Kennedy v. Pennsylvania R.R. Co., supra, the carrier’s employees were duty bound to do all that was possible to stop the riotous or violent conduct of the third parties in order to prevent injury to the passengers. In the present case, the employee driver failed to make any eifort to avoid or terminate the escalating violence of the situation with which he was faced. The neglect of SEPTA’S driver toward his passengers, to whom he owed the highest degree of care, is a breach of duty which resulted in injury to the three minor plaintiffs. We can therefore see no error in the lower court’s finding of negligence on the part of the appellant herein.
Judgment affirmed.
. The court below entered judgment in the following amounts:
For Dolores Mangini, a minor by her parent and natural guardian, Dolores Mangini, $1,000.00; and for Dolores Mangini in her own right, $200.
For Deborah Viereck, a minor by her parent and natural guardian, Mary Viereck, $2,000.00; and for Mary Viereck in her own right, $87.00. (In the opinion of the court below, this amount was erroneously noted as $8,700.00).
The appellant does not claim that the judgment is excessive.
. SEPTA has also advanced the parallel argument that the admission of evidence concerning prior criminal incidents along the same trolley line was error. We find it unnecessary to consider this question since the evidence, as found by the judge in the court below, is sufficient to support a finding of negligence on the part of the driver in this particular incident without regard to prior
“Q. What did you think the trouble was?
“A. Oh, my years of driving, I knew what the trouble was.
“Q. What?
“A. I knew there was a fight, a fight or something. ... I knew someone was probably getting hit or getting throwed at . . . .”
These responses indicate a familiarity on the part of SEPTA’s employee with those incidents testified to by plaintiffs’ witnesses, which testimony is now objected to by appellant. However, the driver’s testimony was brought out by appellant’s own counsel on direct examination. Therefore, even if the admission of the evidence was error, it was cured by the appellant bringing the same evidence into the case. McCabe v. Cannoe, 804 Pa. 497, 156 A. 77 (1931).