              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis Morgan,                          :
                  Appellant             :
                                        :   No. 1984 C.D. 2015
            v.                          :
                                        :   Argued: May 12, 2016
Southeastern Pennsylvania               :
Transportation Authority                :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                           FILED: July 6, 2016


            Dennis Morgan (Morgan) appeals from the June 9, 2015 order of the
Court of Common Pleas of Philadelphia County (trial court) denying his motion for
post-trial relief following a jury verdict in favor of the Southeastern Pennsylvania
Transportation Authority (SEPTA) on his claim of negligence. We affirm.


                                   Background
            The facts may be summarized as follows. On August 31, 2012, at
approximately 2:00 p.m., Morgan arrived at the Fern Rock subway station, which is
located at the northern end of Philadelphia’s Broad Street Subway Line. Morgan was
leaving the area of the northbound subway that had just pulled into the Fern Rock
station and then walked across the platform to the subway trains waiting on the
southbound side. Before Morgan crossed the platform, all of the southbound subway
train doors were already closed. Morgan did not wait for the next train to arrive and
enter a subway car through open passenger doors. Instead, while carrying a red
plastic shopping bag containing items in one hand, Morgan used his other hand to
open the safety gate located between the third and fourth cars. By this time, the
subway train doors had been closed for nearly ten seconds. Using his one arm and
hand, Morgan opened the safety gate and then attempted to climb over the three
safety chains between the two train cars, at which point the subway train started to
move out of the station. As a result of his precarious position at the moment the
subway train started to move, Morgan lost his balance, fell between the cars, and was
dragged under the train.     The passengers began screaming, the train’s engineer
activated the emergency brake, and Morgan was transported to Einstein Hospital to
receive treatment for devastating and permanent injuries, including amputation of
part of his left foot, fractures in his spine and hip, nerve damage in his spine, and a
“drop foot.”     The incident was captured on video, from both the exterior subway
platform and the interior of the train, by video cameras maintained by SEPTA. (Trial
court op. at 1-2.)
               On March 31, 2014, Morgan filed a civil action against SEPTA,
asserting a negligence claim and alleging that its employees and/or agents knew, or
should have known, of his position between the cars. SEPTA filed an answer and
later a motion for summary judgment, which the trial court denied. Id. at 2.
               Prior to trial, SEPTA filed a motion in limine, seeking to preclude
Morgan from introducing evidence relating to a prior incident where an individual
named Shawn Hood (the “Hood incident”) was killed while attempting to board a




                                          2
subway train at the Broad & Olney subway station. The trial court determined that
the two incidents were factually distinct and granted SEPTA’s motion. Id. at 4-5.
              Morgan also filed a motion in limine, seeking to preclude SEPTA from
introducing evidence of his alleged intoxication. Specifically, Morgan sought to
prohibit evidence of his blood alcohol content (BAC) report from Einstein Hospital
indicating a BAC of 384.9 mg/dl; photographs of the tracks after the incident, which
depicted the red bag that Morgan was carrying and a 40-ounce bottle of Steele
Reserve malt liquor located nearby; and Morgan’s statement to Einstein Hospital
personnel four days after the accident that “he was drinking heavily because a friend
got out of jail.” Id. at 3, 5.
              In reply, SEPTA argued that the photographs depicting the red bag and
40-ounce malt liquor bottle are admissible for the limited purpose of showing to the
jury the accident scene and the area where Morgan fell. SEPTA also argued that
Morgan’s statement to Einstein Hospital is admissible to the limited extent that it
could be used to attack his credibility. (Certified Record (C.R.) at 29.)
              With respect to Morgan’s motion in limine, the trial court granted it in
part and ruled that SEPTA could not introduce evidence of Morgan’s BAC for the
purpose of proving intoxication.      However, the trial court permitted SEPTA to
introduce into evidence photographs of the red bag and a 40-ounce malt liquor bottle.
Further, during trial, the trial court allowed SEPTA to cross-examine Morgan with
the statement that he made to Einstein Hospital personnel that he was drinking
heavily. (Trial court op. at 5.)
              At trial, Morgan, inter alia, submitted the expert testimony of Patrick
Reilly, a railroad safety expert, who opined that SEPTA was negligent in failing to




                                           3
have an employee ensure that passengers are safely on the subway train before
departing. (Reproduced Record (R.R.) at 377a-78a.)
             The case proceeded to the jury for a verdict. At the charging conference,
Morgan objected to SEPTA’s proposed jury charge regarding the duty of care owed
by a common carrier. The trial court overruled Morgan’s objection and submitted
SEPTA’s charge to the jury. (Trial court op. at 10-11.)
             The jury found that SEPTA did not breach its duty of care and rendered
a verdict in SEPTA’s favor. Morgan filed a motion for post-trial relief, which the
trial court denied by order dated June 8, 2015. Thereafter, the trial court ordered
Morgan to file a Pa.R.A.P. 1925(b) statement. In this statement, Morgan contended
that the trial court erred in precluding evidence of the Hood incident, in admitting
evidence of his alcohol consumption, and employing SEPTA’s jury charge, which
contained language in addition to that used in Pennsylvania’s Standard Jury
Instructions. Id. at 1, 5-6.
             In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that evidence
of the Hood incident was inadmissible because it occurred years earlier at a different
subway stop and on a different track and Morgan did not have any evidence as to
whether the subway cars from the two incidents were of the same type. The trial
court further noted that no complaint or lawsuit was ever filed pertaining to the Hood
incident and there was no evidence that SEPTA acted negligently. While recognizing
that evidence of prior incidents can be admissible to prove notice of a particular
dangerous condition, the trial court determined that Morgan failed to show a
substantial similarity between the Hood incident and his accident. The trial court
further found that, given the paucity of details concerning the Hood incident,




                                          4
evidence of the Hood incident would be prejudicial and would likely confuse and
mislead the jury. Id. at 7.
               The trial court next determined that it properly admitted into evidence
photographs of the malt liquor bottle. In this regard, the trial court stressed that
“SEPTA never argued that [Morgan] was intoxicated or that his putative intoxication
was the reason for the accident. Rather, SEPTA’s defense was that it was [Morgan’s]
own reckless behavior that caused the accident . . . .” Id. at 8. The trial court stated
that the photographs were relevant and admissible for purposes other than to prove
intoxication: “Since the photographs were taken immediately after the accident, they
were part and parcel to the accident investigation and clearly depicted the accident
scene. As such, these photos were directly relevant to the case and essential for the
jury to understand what occurred.” Id.
               Similarly, the trial court found that it properly admitted Morgan’s
statement to Einstein Hospital personnel that he “drank heavily” for impeachment
purposes and for refreshing Morgan’s recollection because Morgan testified at trial
that he had no recollection of the events leading up to the accident or the accident
itself. Id. at 9.
               Finally, the trial court determined that its jury instruction regarding the
duty of care owed by a common carrier was proper and in accordance with the law.
The trial court noted that its charge followed Standard Jury Instruction 13.120 (Civ)
and that Morgan took issue with additional language stating that SEPTA is not a
guarantor of passenger safety and only has to protect against foreseeable risks. The
trial court determined that decisional law holds that common carriers are not insurers
of safety and are not bound to anticipate all possible risks, only foreseeable risks. Id.
at 11.



                                             5
               Accordingly, the trial court denied Morgan’s motion for post-trial relief.
This appeal ensued.1, 2


                                            Discussion
                                  Evidence of Prior Accidents
               Morgan contends that the trial court abused its discretion in precluding
him from introducing into evidence the Hood incident to demonstrate SEPTA’s
knowledge of a dangerous condition and foreseeability. Morgan argues that the two
incidents are substantially similar because they occurred on the same street line and
in between train cars when the doors were closed. We disagree.

               Evidence of prior accidents involving the same
               instrumentality is generally relevant to show that a defect or
               dangerous condition existed or that the defendant had
               knowledge of the defect. However, this evidence is
               admissible only if the prior accident is sufficiently similar
               to the incident involving the plaintiff which occurred under
               sufficiently similar circumstances. The burden is on the
               party introducing the evidence to establish this similarity
               before the evidence is admitted.

Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010) (citation omitted).
“This limited exception, permitting the introduction of evidence of similar accidents,


       1
          Although we note that the order of the trial court denying Morgan’s motion for post-trial
relief was not reduced to judgment by praecipe of either party, as required by Pa.R.A.P. 301, in the
interests of judicial economy, we shall “regard as done that which ought to have been done.”
McCormick v. Northeastern Bank of Pennsylvania, 561 A.2d 328, 330 n. 1 (Pa. 1989).

       2
           Our scope of review of the denial of post-trial motions is limited to determining whether
the trial court abused its discretion or committed an error of law. Hunter v. City of Philadelphia, 80
A.3d 533, 536 n.7 (Pa. Cmwlth. 2013).




                                                  6
is tempered by judicial concern that the evidence may raise collateral issues,
confusing both the real issue and the jury.” Whitman v. Riddell, 471 A.2d 521, 523
(Pa. Super. 1984).
            Here, SEPTA’s report summary concerning the Hood incident is vague
and lacking particular details. Specifically, the report states that on February 21,
2007, Hood ran down the steps onto the platform level, tried to board between cars
three and four of the train by attempting to “jump over” the gate in between the cars,
grabbed onto the platform of the fourth car, and then fell under the fourth car. (R.R.
at 195a.)
            Although the two accidents could be perceived to be similar in very
broad terms, the particular circumstances surrounding them are virtually unknown in
significant, material aspects. As SETPA notes in its brief, Morgan did not adduce
any evidence concerning the Hood incident with respect to: how long the train was
on the platform before the doors closed; how much time elapsed between the time the
train doors closed and the train started to move; how much time elapsed between the
time the train doors closed and Hood attempted to jump on the train; whether the train
was moving when Hood attempted to jump onto the train; the distance between the
engineer and where Hood jumped on the train; and whether any bystanders attempted
to prevent Hood or warn him from jumping onto the train. Further, as SEPTA also
observes in its brief, Hood boarded the train when it was in the middle of a run, while
Morgan boarded the train at the start of its route, and it is unknown whether there was
a station person on the platform at the time of the Hood incident; whether the Hood
engineer followed SEPTA’s standard procedures for closing the doors for trains; and
whether the Hood engineer would have been able to see Hood had an alternate
procedure been in place.



                                          7
               In light of this lack of information, we cannot conclude that the trial
court abused its discretion in precluding Morgan from introducing into evidence the
Hood incident. See also Lynch v. McStome & Lincoln Plaza Associates, 548 A.2d
1276, 1279 (Pa. Super. 1988) (upholding the inadmissibility of prior accidents listed
in a computer printout where the plaintiff was injured in an elevator when it abruptly
stopped; although the printout contained phrases like “escalator stopped abrupt,”
there was no indication in the printout “of the circumstances of or causes for the
reported incidents.”). Accordingly, Morgan’s argument does not warrant relief.


                       Jury Charge on the Duty of a Common Carrier
               Morgan next contends that the trial court erred in charging the jury on
the duty owed by a common carrier to passengers. While admitting that the trial
court charged the jury in accord with Standard Jury Instruction 13.120 (Civ),
regarding the “highest” standard of care owed by common carriers, 3 Morgan objects
to the inclusion of additional language stating that SEPTA is not a guarantor of the
safety of its passengers and only has to guard against foreseeable risks. According to
Morgan, this portion of the charge confused the jury and impermissibly intermingled
the concepts of duty of care and foreseeability. Again, we disagree.
               Initially, we note that a trial court has wide discretion in phrasing jury
instructions. Gaylord ex rel. Gaylord v. Morris Township Fire Department, 853 A.2d
1112, 1115 (Pa. Cmwlth. 2004).


       3
          In this respect, the trial court charged the jury as follows: “Well, SEPTA as a common
carrier does have a duty to its passengers as recognized by the law. This is what that duty is: Under
Pennsylvania law, a common carrier must use the highest standard of care in operating its vehicle
and transporting [its] passengers. So SEPTA is the common carrier and must use the highest
standard of care.” (R.R. at 626a.)



                                                 8
             It is clearly the law of this Commonwealth that when
             reviewing a trial judge’s charge to the jury it must be
             viewed as a whole. . . .

             [J]ury instructions must be upheld if they adequately and
             accurately reflect the law and are sufficient to guide the jury
             in its deliberations. . . . Unless the charge as a whole can be
             demonstrated to have caused prejudicial error, there will not
             be a reversal for isolated inaccuracy. A charge should be
             found adequate unless the issues are not made clear to the
             jury; the jury is confused by what the judge said or there is
             a statement in a charge that amounts to a fundamental error.
Clack v. Department of Transportation, 710 A.2d 148, 152-53 (Pa. Cmwlth. 1998)
(citations omitted); see Commonwealth v. Williams, 732 A.2d 1167, 1187 (Pa. 1999).
             Here, the objected to part of the charge reads as follows:

             The law does not impute that SEPTA is the guarantor of
             safety or required to insure against all possible risk. Rather,
             the carrier or SEPTA, in this case, has the higher duty to
             protect against foreseeable risks. Okay. So that’s the duty
             of care. They have to protect against foreseeable risks.
(R.R. at 626a-27a.)
             In Pennsylvania, although a common carrier must exercise the highest
duty of care, “the carrier is not an insurer of its passengers’ safety. . . .” LeGrand v.
Lincoln Lines, Inc., 384 A.2d 955, 956 (Pa. Super. 1978). Further, the negligence
element of duty “is not sacrosanct in itself, but is only an expression of the sum total
of those considerations of policy which lead the law to say that the plaintiff is entitled
to protection.” Hoffman v. Sun Pipe Line Company, 575 A.2d 122, 125 (Pa. Super.
1990) (citation omitted).     Indeed, the concepts of duty and foreseeability are
inexorably intertwined because the scope of the duty is limited to those risks which
are reasonably foreseeable by the defendant in the particular circumstances. Zanine
v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super. 1985) (concluding that the defendant
owed no duty of care to guard against unforeseeable risks). In light of this case law,

                                            9
we conclude the trial court’s charge to the jury accurately reflected the law and did
not tend to mislead or confuse the jury. Consequently, Morgan’s argument lacks
merit.


                          Evidence of Alcohol Consumption
             Finally, Morgan argues that the trial court erred in permitting SEPTA to
question him about his statement to Einstein Hospital personnel that he had been
drinking heavily and in admitting photographs of the 40-ounce malt liquor bottle.
Morgan contends that under prevailing case law, evidence of alcohol consumption is
inadmissible as unfairly prejudicial unless it reasonably establishes intoxication or
impairment to the degree that an individual is unfit for the given activity.
             “The admission or exclusion of evidence is a matter within the sound
discretion of the trial court, which may only be reversed upon a showing of a
manifest abuse of discretion. To constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the complaining party.”
Lock v. City of Philadelphia, 895 A.2d 660, 665 (Pa. Cmwlth. 2006) (citations
omitted).
             The well-settled rule in Pennsylvania is that “where recklessness or
carelessness is at issue, proof of intoxication is relevant, but the mere fact of
consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably
establishes intoxication.” Whyte v. Robinson, 617 A.2d 380, 383 (Pa. Super. 1992).
See Braun v. Target Corp., 983 A.2d 752, 760 (Pa. Super. 2009). “However, while
evidence can be found inadmissible for one purpose, it may be admissible for
another.” Spino v. John S. Tilley Ladder Co., 696 A.2d 1169, 1172 (Pa. 1997).




                                           10
             Here, when ruling on Morgan’s motion in limine, the trial court did not
permit SEPTA to introduce evidence to demonstrate that Morgan was intoxicated.
Rather, the trial court allowed SEPTA to introduce the photographs as part of the
background of the case and Morgan’s statement to Einstein Hospital personnel to
attack his credibility if necessary.
             Importantly, during his case-in-chief and on direct examination,
Morgan’s counsel asked Morgan: “Is it possible that earlier in the day, before the
accident, earlier in the day of the accident, you may have been drinking?” (R.R. at
419a.)     Morgan responded, “It’s possible, but I don’t remember that.     I don’t
remember nothing that day.” (R.R. at 419a.)
             On cross-examination, SEPTA questioned Morgan, in pertinent part, as
follows:

             Q. And do you recall us speaking with some folks at
             Einstein Hospital on September 4th just several days after
             the incident when you indicated to them that you were
             drinking, you must have been drinking heavily. I guess you
             were partying on behalf of a friend. Do you know that
             statement that’s attributed to you?

             A. I don’t remember. . . .

             Q. Let me read it [i.e., the medical document] to you. I’ll
             ask you if you remember if [it] was accurate. . . .

                                       *   *    *

             Q. [I]t indicates that you said that [you were] drinking
             heavily, because, quote, a friend just got out of jail. Was
             that true or not?

             A. I don’t remember a lot.

                                       *   *    *


                                           11
             Q. So do you remember drinking heavily because a friend
             had just gotten out of jail?

             A. No.
(R.R. at 429a-31a.)
             Shortly thereafter, SEPTA continued to cross-examine Morgan as
follows:

             Q. You’ve seen this picture before with the red bag,
             correct?

             A. Correct.

             Q. That red bag was your red bag, correct?

             A. Correct.

             Q. You also have seen in that picture, if we go to the next
             photograph, please? You see that, the beer bottle here, sir?

                                     *    *      *

             A. I had that before.
(R.R. at 439a-40a.)
             It is well-settled that evidence of alcohol consumption is admissible to
contradict a witness’s statement that he had not been drinking. Brink v. Kessler, 165
A. 836, 836 (Pa. 1933). Similarly, here, Morgan testified on direct examination that
he did not recall drinking and the evidence of his prior statement to Einstein Hospital
personnel and the photographs were admissible to discredit this testimony and
undermine Morgan’s credibility. See Pa.R.E. 607(b) (“The credibility of a witness
may be impeached by any evidence relevant to that issue”); Pa.R.E. 803.1, Comment
(“An inconsistent statement of a witness that does not qualify as an exception to the
hearsay rule may still be introduced to impeach the credibility of the witness”).



                                          12
Moreover, and perhaps more importantly, by exploring the topic of whether Morgan
was drinking on the day of the incident, Morgan’s attorney “opened the door” to that
issue. Consequently, under our rules of evidence, SEPTA was allowed, during cross-
examination, to prove that Morgan had, in fact, been drinking on the day of the
incident. See Commonwealth v. LaCava, 666 A.2d 221, 234 (Pa. 1995) (“Having
‘opened the door’ to this subject, appellant cannot now complain because the
Commonwealth chose to further examine what was behind that door.”);
Commonwealth v. Ford, 650 A.2d 433, 442 (Pa. 1994) (“A defendant’s prior criminal
record is not admissible as evidence. Where the defendant opens the evidentiary door
concerning his past criminal record, though, the Commonwealth is allowed to cross-
examine on this point.”). To the extent that Morgan believes that SEPTA’s evidence
was unfairly prejudicial and suggestive of intoxication, it was nevertheless
admissible, and it was Morgan’s obligation to request a curative and/or limiting
instruction, which he did not do. See Pa.R.E. 105 (“If the court admits evidence that
is admissible . . . for a purpose – but not . . . for another purpose – the court, on timely
request, must restrict the evidence to its proper scope and instruct the jury
accordingly.”); Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781
A.2d 1263, 1275 (Pa. Super. 2001) (“Generally, in the absence of extraordinary
circumstances, a prompt and effective curative instruction which is ‘directed to the
damage done’ will suffice to cure any prejudice suffered by the complaining party.”).
Therefore, on this record, we conclude that the trial court did not commit evidentiary
error and Morgan’s final issue is meritless.




                                            13
                                     Conclusion
              For the above-stated reasons, we affirm the trial court’s order denying
Morgan’s motion for post-trial relief and remand for a new trial. More specifically,
we conclude that the trial court did not err in precluding evidence of a prior accident,
namely the Hood incident. We further conclude that the trial court’s charge to the
jury pertaining to the duty owed by a common carrier was in accordance with the law
and, therefore, proper.   Finally, we conclude that the trial court did not err in
admitting evidence of Morgan’s alcohol consumption for the limited purpose of
impeaching credibility and as background evidence of the accident scene.
              Accordingly, we affirm the trial court’s order denying Morgan’s motion
for post-trial relief.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis Morgan,                          :
                  Appellant             :
                                        :    No. 1984 C.D. 2015
            v.                          :
                                        :
Southeastern Pennsylvania               :
Transportation Authority                :


                                    ORDER


            AND NOW, this 6th day of July, 2016, the June 9, 2015 order of the
Court of Common Pleas of Philadelphia County (trial court) is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
