Kenny v. Southeastern Pennsylvania Transportation Authority

581 F.2d 351 (3rd Cir. 1978)

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Nature of the Case

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Facts

P was awaiting the arrival of a train operated by D when she was attacked by another patron. P had purchased a ticket at the ground-level cashier's booth at the Fairmont Avenue Station. She climbed three flights of steps to the elevated platform, sat on a bench near a light, and waited for a northbound train. The only other person on the platform, a man on the opposite side of the tracks, crossed over to P's side and sat on the same bench. After saying a few words, the man dragged P some 150 feet to the darkened south end of the platform and then beat and raped her. Her screams alerted an unknown person in the neighborhood who called the police. An officer apprehended the assailant on the platform. The arresting officer and other policemen who investigated the crime testified that the area at the south end of the platform was dark and that the electric lights there were not lit. A detective who arrived about an hour after the attack occurred said it was necessary to use a powerful flashlight to illuminate the area in his search for physical evidence. The attendant who had been in the cashier's booth testified that he knew nothing of the attack and had not heard P's screams. He admitted he had a portable radio playing in the booth, but said it was permitted. A telephone in the booth was connected with dispatchers and security units but was not used that evening until after police had come to investigate the incident. No other D employee was in the station or on the platform at the time the crime was committed. In 1973, Philadelphia received a grant from the federal government to hire 60 additional policemen after stating in its application that based on data compiled by D 'reported incidents on the high-speed line are increasing, particularly robbery, assault, and disturbing the peace.' At the trial, there was testimony that no criminal incidents had been reported at the Fairmont Station in the three years preceding. D claimed that all reasonable care was being exercised. D testified that new lighting had been installed on the platform a few days after the attack. An employee testified that lighting at the stations was checked on a daily basis. He produced records showing that about an hour after the rape one light bulb was replaced at a crossover between the two tracks, and the following night, three bulbs were installed. On the day before the incident, four bulbs had been replaced on the southbound platform. P also elicited the fact that a new fluorescent fixture was installed four days after the attack. D contended that this evidence of subsequent repairs was prejudicial. The trial judge allowed the testimony for impeachment purposes and also to show the feasibility of precautions. The jury found that D had knowledge of the dangerous condition of the platform, failed to adequately protect against it, and this negligence was the proximate cause of P's injuries. The district court entered judgment n. o. v. finding that D had no reason to anticipate the criminal conduct of the assailant at this particular station. The court also concluded that the lack of adequate lighting and a system of security devices, such as closed circuit TV coverage, telephones, and warning devices, were not proximate causes of the assault upon P. The court denied D's motion for a new trial based on contentions of an excessive verdict, improper admission of testimony on repairs to the lighting system following the attack, and prejudicial wording of the interrogatories.