*1 length such a existed condition icy cor- removed have man should prudent time it. rected affirmed. of nonsuit
Judgment Eagen concur and Mr. Justice Mr. Justice Jones in the result. by
Dissenting Opinion Mr. Justice Musmanno: sidewalk “No other opinion The majority says: travelled plaintiff the route that slippery along feet of 460 defendants’ brick distance sidewalk, negatives her home.” This assertion from entire that “the part majority opinion latter brick condition ob- pavement presented icy general was caused the over-all viously icy condition which existed slippery throughout Oity prior sup- immediately accident.” (Emphasis plied).
I grant would a new trial.
Mr. Justice Cohen and Mr. join Justice Roberts in this dissent. Appellant.
Wood Conneaut Lake Park, v. Inc., *2 C. Mus- J., Before Argued October 1964. 6, Bell, Roberts, O’Brien mannO, Jones, Cohen, Eagen, JJ. refused 1965.
reargument April 19, Stuart A. him Culbertson, with Paul E. Allen, Culbertson & for Allen, appellant.
Robert Y. him Daniels, with Michael Hahalyak John for Pepicelli, appellees.
Opinion by Mr. Chief Justice 16, March Bell, 1965:
Plaintiff was seriously injured while a roller riding coaster an amusement park owned and operated by defendant. He brought action of trespass against favor in his verdict a found defendant and of $75,000. amount judgment vere- non obstante asks Defendant It is, denied. below had the Court dicto, con- must be the evidence hornbook law course, light verdict win- favorable sidered most every given reason- the benefit of and he must be ner, arising but he able therefrom, fact inference of merely ato which amount entitled inferences conjecture: Express, guess Inc., v. Eastern Bohner 405 Pa. A. 2d 864. 463, 466, 469, may
The evidence be thus summarized: August plaintiff got On into roller coast- 19, 1956, daughters er car his cousin with wife and two equipped and her husband. The individ- car was with pas- large ual seat belts and a handrail to enable a *3 senger to hold on if he desired. Plaintiff sat in the daughter; front seat with his other wife and one daughter sat with in the his cousin and her husband rear seat in the same car. happened:
Plaintiff thus described how and what up “[After the train] went down hill first [and becoming another down] hill ... I was con- my daughter cerned about and I looked over to see standing how she was and then I ride, went when straighten my just to up, head it seemed to ‘freeze’ position just and then sky, out of the clear blue we were on this up again’ bend and I was thrown my side of the car wife and child was slammed again’ over me and point ... it at that I felt my snap, neck and then just this tremendous headache, momentarily thing and the started, next I we knew, getting were off the car. . . .” Plaintiff never saw or noticed this bend in the although family course,* his got did. When he off * Probably because he turned his daughter head to loot at his at that crucial moment. then 10 minutes and he for about the roller coaster sat yards drove car and over 200 to his wife’s walked picnic drove then to meet her in the area. She back away and him the Club about 40 miles to Veterans Club he left him there. From the Veterans went Eagles broth- ten-thirty, for Club about to look his pick up intending drive and to er his own car, Eagles difficulty “navi- At home. he had Club, experienced strange gating,” feet and in his sensations great dancing. difficulty he had Two later hours go to the decided but when went outside he home, collapsed. porch spent night He the rest porch, policeman on the and about 7:30 saw a.m., Hospital. him took him to Franklin ex- He was by diagnosed amined there Dr. con- who Butters, polio Hospi- dition him to the sent Lakeside polio hospital Pennsylvania. tal, at Several Erie, by hours later he was Hamot taken ambulance to the Hospital approximately at Erie, where he remained months. He two then taken ambulance Hospital Pittsburgh. Veterans neurosurgeon, operated A Dr. Murl E. Final, plaintiff’s plaintiff per- neck and testified that is now manently paralyzed body paraly- in his lower and opinion, injuries plain- sis in his is, the result of the tiff sustained the roller coaster. (1)
It is well settled that defendant is an in Cooper Pittsburgh, surer: v. 390 Pa. 2d 534, 136 A. *4 Haugh and 463, cases cited therein; v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145; Schentzel v. Philadelphia League National Superior Club, 173 Pa. (2) Ct. 96 A. 2d plaintiff 179, and 181, must prove by preponderance a fair (a) of the evidence, negligent, (b) defendant was negli and that its gence proximate was the cause of the accident: Markle v. Robert Hall 411 Clothes, Pa. 191 282, A. 2d 374; 62 897; A. 2d 186 396, Pa. 409 Co., Const. v. Sanctis
Zilka
More
supra.
405
Inc.,
Pa.,
Express,
v. Eastern
Bohner
based
is
which
sustained
not be
a verdict will
over,
Pitts
v.
Steiner
guess:
or
surmise
conjecture
Rob
254;
204 A. 2d
Pa. 549,
415
Co.,
burgh Railways
.
826
A. 2d
Pa.
202
Kaufman,
192,
bins v.
in
said
correctly
and
relevantly
Court
As
Club,
League
National
Philadelphia
Schentzel v.
:
supra
183)
Superior
(page
Pa.
Ct.,
of amusement
“place
“. . -.- ‘One who maintains
not an insurer,
admission is
charged,
main-
care in the construction,
must use reasonable
regard
tenance and
management
having
it,
customary
character of the
exhibitions
given
Bros.
patrons
conduct of
invited:”
v. Harris
Haugh
American
Am.
315 Pa.
172 A.
Kallish
Co.,
145.’
v.
90,
Ct.
Base Ball
Superior
Club
138 Pa.
Philadelphia,
When in- we apply test the facts stant plaintiff means that case, prove must fair preponderance of evidence that failed defendant to exercise reasonable care the erection- or mainte- nance of its roller coaster track equip- its cars and (or ment) commensurate with the risk involved. produced one prove witness to
Plaintiff this crucial point causal negligence. Dr. James Romualdi, Associate Professor of Civil at Engineering Carnegie Institute of Technology, plaintiff’s He witness. examined the construction plans of the track physically inspected it for 20-25 minutes during trial, six nearly years after the accident. Cf. Murray v, Siegal, 413 Pa. 23, 195 A. 29, 2d 790. He testified (a)- general as to the engineering in principles volved (b): particular that “with respect design construction of the track itself was a very serious violation of good, sound engineering *5 adequately design was in that the track features” banked.* opinion conclusions
Dr. Bomualdi based his improper curve allegedly construction as proper upon con- occurred, where the accident highway com- has or of a struction railroad design. pletely of curves The construction different highway traveling to 75 from 40 on a for automobiles obviously miles an hour Dr. Bomualdi is, testified, proper unquestionably construc- different from the It clear tion of a on a roller coaster track. curve applicable analogy. more this Far was not inadequate important, testimony to Bomualdi’s was finding negligent sustain Bomualdi construction. experience designing had had no wooden structures analyzed like nor he this, had them or them examined (a) before He trial. testified that the lateral accelera- knowledge tion was but he did not excessive, “have just person how much lateral acceleration a could (b) testimony take”; and twice to refused say design that the merely unsafe, said possible engineering design. was not the best How- the evidence ever, showed that from the time the track prior had been reconstructed several months accident and until the time of this trial, 1,297,802 (persons) “human (including plaintiffs bodies” all of family) had ridden this course and absorbed the abruptness of this injury. curve without In addition (a) plaintiff to all of riding this, safely in a hand- railed car with (b) seat admittedly belts, failed protect holding (if himself on necessary) front (we rail of (c) repeat) car, none ' * expected, As was tó be produced the defendant five ex- perts (three operators of whom were builders or of roller coaster tracks) who testified that the track was constructed in accordance good engineering practice with and that the roller coaster course was safe. ride person other
plaintiffs party any *6 (d) and this ride, or bend on at curve injured this of Butters) (Dr. told first doctor never his plaintiff (e) and the roller coaster, this accident on alleged ac- his reported or never this suit plaintiff commenced to a claim presented or cident to defendant of the expiration until a few before the days defendant limitations. two statute of year of the of the opinion A Court are majority positive because of the lack of definiteness, plaintiff, failed of his expert, ness and certainty testimony to of proving negligence, burden defendant’s satisfy and for this non veredicto judgment reason* obstante be of v. must entered favor defendant: Bohner Eastern v. 405 Express, Inc., supra; Mrahunec Pa., 385 Pa. 121 A. 2d v. Somer Fausti, 64, 878; Wagner set Co. Mem. Pa. Park, 372 93 440. Inc., A. 2d 338,
Judgment judgment reversed and non obstante veredicto entered defendant. * Opinion prefer judgment The writer of this would to enter plaintiff’s
non obstante veredicto for defendant because volun tary assumption joyous, jarring, anticipated, jolting, of risk. A' violently bumping careening and ride on a roller coaster you flings every from to side well known American side is boy, pleasant girl man, and one of memories. is our most plaintiff voluntarily crystal that It is knowl clear and with full by edge dangers injury assumed the of the ride and the risk of flung side, being when he In from side rode this roller coaster. Philadelphia League Club, Superior v. National Schentzel 173 Pa. Ct., supra (page 186) pertinently quote at Court stated: “We entering pages ‘By length at Torts 383-384: from Prosser voluntarily any presents freely into relation or situation which may plaintiff accept it, danger, be taken to obvious himself, agree look out for and relieve the defendant will participate spectators at responsibility. who sit as Those being all the sports assume obvious hurt risks and amusements Douglas flying balls, coasters, by . . .’”. Accord: v. roller 955; Repyneck 232, Tarantino, v. Converse, 93 A. Pa. Pa. 415 248 92, 2d 105. A. result. concurred
Mr. Justice Cohen Eagen Mr. dissents. Justice by Opinion Concurring Jones: Mr. Justice clearly no My study indicates record I negligence Therefore, has been shown. actionable opinion. majority in the reached concur the result Opinion Dissenting Mr. Musmanno: Justice nostalgic A ride one fond, roller coaster momentous, that first of childhood. There is memories up steeply then, awesome inclined track, ascent heart-stopping precipitous peak, at de- its the sudden, sensation-charged once then climb, another scent, *7 breath-taking tingling, more a hair fall with nerves flying, joyous laughter, the amid and then shouts racing straightaway a over into a which slams curve, exciting rapid careening the around the then a bend, rocketing ups-and-downs, dips, succession of whirlwind leaf-flowering through more adventuresome curves fragrant foliage, happy trees and and then exhaus- tion from fun and thrills, uninhibited excitement.
The only of thrills a roller coaster are not chil- for parents dren but for enjoy their who them in double measure-through of squealing sensations their off- spring, yelling delight with only delirious chil- dren can know. August George
On 19, 1956, M. Wood on embarked such a ride with his young wife and daughters two on what was known as the “Blue Streak” at Con- journey began neaut Lake. The in gayety mirth and tragedy. and ended in stark height Prom of exalta- tion, with his wife and George plunged children, Wood depths of disaster for himself family. and At point thrilling one of the expedition, Wood, out of a devoted solicitude his (Barbara) children, one sitting in the seat next and him, (Sandra) other how to see head turned his him, behind the seat moment At that “standing the ride.” Sandra thrown sharp he and a curve into rocketed car weight bodies of against of the car, the side He against pressing him. daughter and of his wife by a jerked being car of the out he as if were felt pain his great a and he sensed force,” “tremendous stopped terminus finally at the the cars head. When considerably got shaken, journey, out Wood sensing sharp neck. and in his head torment a Hospital day Franklin taken
The next Hospital several from to the Lakeside Hospital Dr. in Erie where to the Hamot hours later, performed operation on neck. his Murl Kinal surgeon tear had sustained a serious found that Wood protrusion a disc of the 5th and nerves and 6th cervical spinal alignment, had cord out forced the which precipitating body, catastrophic paralysis lower of his permanent George will character. For Wood there ups no for him there will more be downs life; days. deterioration for be a constant the rest his wreckage system inflicted his anatomical although only years age time such that at the possesses capacity he now no accident, more strength daily to attend needs than would three-year-old child. He cannot take bathe, food, *8 tie his even shoes without assistance. Henceforth, only objective struggle keep in life will be to to alive may go enjoying that order his unrelieved misery. professional opinion
It Dr. was Kinal’s that Wood’s physical disaster injuries was direct result of the violently he sustained when he was thrown to the of the making sharp left roller coaster car as it was a right. developed to the inspection turn It from an of the Blue Streak track that it faultily had been con- very point structed at the plaintiff’s where the neck associ- Romualdi, Dr. James violently wrenched. was In- Carnegie at Eengineering of Civil professor ate con- after studying of Technology,.declared, stitute ex- and physically coaster of the roller plans struction design respect “with the track amining that, serious very a of the track construction itself, features.” design sound engineering violation of good, for abrupt too question said that the curve He at the traveling a car human with body absorb, at prevailing under the conditions speed and a explained: “Before entering crucial moment. He then curve portion and. into a straightaway, constant it is we-call have what radius, necessary spiral gently transition one very curve, from a line goes straight into a section of constant (cid:127) radius.”
That transition or in- spiral curve was missing Blue Streak at the vital suit spot. brought Woods against the Conneaut Lake Park, Inc., owners Blue and the Streak, returned in his a verdict favor The trial $75,000. judge stated that verdict a “very modest” the “tre- one, view of mendous damage sustained by this man.” unfortunate The trial judge pointed out with that, Wood’s life ex- than pectancy more “his loss of years, wages further earning capacity alone would to more amount than $120,000.”
That figure would take into account the pain and suffering endured and yet be by George endured Wood instead of who, boldly striding through the 30 years golden life can ahead, only crawl through them as a three-year-old child. But as modest as was as $75,000 figure, inadequate as was to offer Wood the crutches on which to hobble along during those miserable 30 years, this Court has wiped that so that out, Wood must now look at life not only a helpless cripple, as a helpless indigent and pos- sible mendicant.
68 explanation which for an a decision calls
So drastic upon people satisfy courts, look those who will appellate especially fountain courts, not be will I that satisfaction submit wisdom. opinion. majority reading forthcoming from a opinion “hu- majority that 1,297,802 The states “and absorbed man bodies” had ridden the course abruptness injury.” There of this curve without support syllable testimony not a word or a this statement. The trial record does not show persons they been testified that had not 1.297.802 injured. majority This volunteered conclusion of the is founded on the statement of a witness defendant’s period during that there was no record of accident question. stating This is far from that no accident injured. Many occurred or that no one had been people jolts could have sustained substantial seriously may did not disable them. been Others have injured symptoms but the did not become manifest they until later and then did not connect them with may they the roller coaster ride. Others have known injured preferred were the roller coaster ride litigate. not
In it does not many addition, matter how rode injury. question without anything is: Was wrong with the Blue day, Streak on hour min- plaintiff injured? ute that the As the trial court cogently outstanding stated: “The fact about plaintiff got case was that on this Blue Streak well only years age man and within a few hours after got helpless he cripple off, was a for the rest dispose his life.” One cannot of this cause-and-effect equation by the casual statement that others rode the injured. Blue Streak and were not heard they evidence, listened to the statement about the 1,- supposed they rides, concluded 247.802 figure exaggerated, that it untrue, that it *10 and fact-finding body the They irrelevant. were summarily court appellate the province is for reason some giving without finding to dismiss that Opinion. Majority in the appears none of which it, rides fact the multitudinous the of before Moreover, in this involved the ride compared single can be in the the conditions proof there must be case, present similar to the ones exactly million were rides were in instant instance that case, the as, in (al- three in the front this case passengers seat as in sit front though ordinarily only seat), two the in the the front all weight passengers of the seat, the million rides the same Wood as that on the of seat the the the front ride, heights persons in all the other rides tallied with the heights the of on persons this ride. There deter- would have to be a mination as to also whether on the passengers all other rides were aware that were they an coming abrupt bend. did the Also, passengers on other rides brace themselves when came bend they or did all slide they over and crush the person on the outside happened seat, this case? ques- When tions of type this were to T. put Darwin Kepler, promotion defendant’s manager, defendant’s counsel “these objected, stating, questions very show the im- anof possibility answer, asking this witness for a con- clusion which he or nobody else could answer.” This objection in itself shows that the one million ride fig- ure can have no application to the one particular ride we are here considering.
There are innumerable variables which have to be considered before one can base a conclusion on mul- of tiplicity against events as the one which is focus. A million pedestrians may pass over a defect in the sidewalk and not be injured, the 1,000,001st fall traveler into the may hole or trip over the defect if the facts reveal that and, the hole was caused injured person is municipality, the (cid:127)negligence of the army which regardless recovery, to a entitled danger pass over good unscathed luck to had pulled up that 1,000,001st down reached traveler, be kind are If cases to his doom. effect, cause instead of mere numbers decided ju- for a no need logic be there can and reason, I.B.M. comptometer inquiry, suffice, A will dicial displace can a unifax can dictate the verdict, (cid:127)machine eventually judge which, all himself, absurd. course, engineering mas- An be an can sometimes accident A terpiece incidents. of unrelated but concomitant *11 people agents, numberless a score of hundred factors, Bridge cooperate may. unconsciously to cause the all Key chemical location, Louis to fall. Weather, San of may idiosyncracies play physics, of mechanical effects, Perhaps pivotal calamity. all to effect a concatenate only million all once or even a will cases, 10,000 precision forces combine with the of a mathe- those hap- trigger matical it table but when disaster, investigators dig interrogate pens, into the wit- debris, study the locale and conclude that it nesses, was missing precipitated or the unscrewed nut which bolt, Airplanes probably the disaster. have millions flown missing times with bolt or an unscrewed nut, day speed temperature, comes the that wear wind, conspire and tear all with that ac- unscrewed nut to complish the terrestrial crash. And it is no excuse say in such a situation that on other occasions produced the loose nut plane had not the fall of a possibly it cannot that, therefore, be the cause of today’s calamity.
In it not true plus addition, that of the million people who the Blue Streak after rode the reconstruc- 1956) except George tion in- no one, Wood, was ever injured. Miss Diane Jean Ion testified that on June conse- grave with Blue Streak she rode the 1960, 17, she and- snapped ride her neck During the quences. car be lifted out that she had to disabled so body in her lost hospital. feeling and taken to a She her paralysis from the but fortunately waist down, is. not the plaintiff’s as, tragically, permanent, because that majority opinion argue would under no on ride particular one else injured either. injured discussion Wood could have been serious is a non sequitur. This there are Every day trains' planes automobiles crash, collide, accidents — un jump the passengers away track —some walk are are scathed, injured others and then there who scalding few feel the blast of the desperately steam or the impact steel. hot, jagged ripping, But this is only just illustrative it because discussion, (cid:127) happens is not true that telltale ride August 19, 1961, was a normal one one and that no was disturbed except Wood. Mrs. Jane who Morrison, rode the same car with had testified Wood, that she ridden the Blue Streak 50 prior times 19, August and six 1956, or seven times trip.' before the fateful - She described trip as being so “rough” that she gave away her remaining tickets and never rode Blue Streak again. She explained the reason for the “roughness”: “Well, were more adults *12 it ride, was heavily loaded.” She said the trip was “more jerky.”
Arnold Smith, another passenger with testi- Wood, fied “I that got shook up enough that I never it rode since.” Mrs. Betty Wood, plaintiff’s testi- wife,- fied: “Well, we went over on this right turn it just threw my daughter and me over against hus- my band ... we were thrown over against him with ter- ' n rific force.”
Mrs. Virginia Smith testified that the ride was unusual that she saw “his (Wood’s) jerked neck back.” to con- thing no it is small to this, all
In addition where spot at the very injured that Wood was sider promo- The previously. occurred had accidents other had persons four testified Kepler manager tion defects fractures because bone collar sustained management 1956, at this point, and, track ef- however, make a change. change, to decided elevated merely the defendant no cure since fected fangs to draw the doing nothing the track, snapped of the curve which abruptness dragon —the did on stilts the defective track bones. Placing collar a steel lifting It like the defective track. was not cure like floor. It was from the basement to the first trap second to the from the first floor tiger taking caged, like It door cage open. but still leaving floor, by track rail on railroad a broken remedy trying not replac- track of a hill but top elevating rail. ing in that
The defendant additionally negligent this vital reconstruction work done a man had de- Hoover) much to (Frank whose left competency “Q. questioned: He was studied sire. Have ever you of an courses accredited college basis from any any in connection university with civil engineering? Q. A. sir. Or A. No, dynamic engineering? No, Q. Are sir. ... able to mathematical you work out a forces and equation regarding A. directions? No, too well.”
An idea of the blundering manner in Frank Hoover went about this sensitive task can be gained the fact from although objective stated speed reduce of the cars at this he never point, speed clocked the of the cars! more one studies this case the more apt one is conclude the majority did not clock mo- of the plaintiff’s
mentum demands for justice. George Wood has established a clear case of negligence and *13 (mod- deprived verdict modest the not be of he should disablement) which gravity of his in view of the est proved accident tortious him. He awarded responsi- proved faulty which construction question simply of here for the tort. We have ble been track had If the roller coaster cause and effect. principles engineering built accordance with sound snapped would no would have and no vertebrae necks estimable have This was crumbled. testified only authority an assist- of Dr. who is not Eomualdi, professor greatest engineering ant at schools one country Technology) (the Carnegie in the Institute Pittsburgh Ameri- but is of the of the director section Society Engineers; In- can of Civil a member Bridge ternational Association for En- and Structural gineers Society Engineering and the American Edu- as well aas former chairman of American cation, Society Engineers Pittsburgh of Civil Council Society Testing of the American Materials. opinion majority says that Dr. “ex- Eomualdi plans physi- amined the construction of the track and cally inspected it during for 20-25 minutes the trial, nearly years six conveying after accident,” impression plans that Eomualdi’s examination of the cursory was a mere, one. The momentous how- fact, plans possession ever, that he had the in prior studied them for 8 months to the trial. That Dr. Eomualdi did not years examine the track until six after the consequence accident was of no if the track was in (and the same condition ques- this was not tioned) as it was when the accident occurred. In ad- particularly it is dition, to be noted that Eomualdi had pictures motion taken of the Blue Streak in action and he studied these films, would undoubtedly give appreciation him a better of the forces involved movement the roller coaster person- cars than a give al view would him, because get could never close to the telescopic movement as a camera view. *14 tes- “Romualdi’s majority opinion that states
The negli- finding of inadequate timony to sustain was nothing majority gent advances The construction.” . conclusion. re- startling The record this to sustain ade- testimony more than was Romualdi’s that veals the in prove negligence the defendant quate the :to The the Blue Streak. maintenance of and construction in the track there fault defendant admitted already and-, remedy attempted the fault, to job was the that Romualdi testified 1956. stated, poorly testimony. accepted and done the quali-' pass qualified on a witness’s more to Who is fications.; judge the hears and the trial who sees days, or him over a number and observes witness reading appellate to a confined the court which is This what is of the record? The answer is obvious. judge of Romualdi: trial said. qualifications, thought were Romualdi’s “We Dr. compared expert quite impressive particularly by In addition, called . .” witnesses defendant . judge “Experts qualifica- the trial said: with far less testify permitted Dr. tions than Romualdi to were properly on behalf of the defendant that the ride was designed purpose for safe for which it was intended.” n improperly slighting In addition to Romualdi’s testimony, majority misapprehends testimony. that opinion majority says that Romualdi that testified adequately “the track was not did banked.” Romualdi testify. contrary, so He testified to the banking banking: where there should be no “This go track to starts into an embankment it ever before gets straightaway to the curve. It’s on the and this I able to check I when visited the site. track to starts but there’s bend, no reason turning. bank, because there’s no The result being instead a balance with lateral forces to starting finds himself passenger vertical forces, either by holding over and is forced way, lean against occupant, or the next pushing railing, he shouldn’t himself in a vertical keep position, cir- set of have do because this unfortunate this, to lean tending while he’s cumstances, pushing the car make —turns to the suddenly right left he’s so already pushing direction, embankment than situation is even worse had no if just at the car the curve.” dragged flat around all, (Emphasis supplied).
Romualdi also testified that the car in which Wood *15 rode not with de- equipped and that springs its sign “was not proper particular for that location.”
The opinion disposes of majority superb Romualdi’s engineering qualifications particularized knowl- edge the Blue Streak by stating that the defendant produced experts five support to theory the defendant’s of non-negligence. This is a variation of the 1,297,802- riders The theory. fact that five “experts” testified that the track was safe not did make it have safe. We repeatedly said that proof is not determined by pre- a ponderating number of witnesses. The well jurors, as the saw the five judge, defendant experts they concluded that were they and there noth- unreliable, is in ing the majority opinion to buttress their testi- mony. fact that reference to the testimony experts defendants’ was relegated to a footnote in the opinion majority would suggest that even majority was not more any impressed than jury- .
The majority opinion endeavors by to inference that suggest plaintiff possibly was not in- even on jured the roller coaster and states that after alleged accident he went to the Eagles Club he where “had great difficulty dancing.” This assumes Wood was actually dancing and, course, is gen- person that a dancing fact of life accepted
erally spirits in good condition good physical not only dance on the But did no cavorting Wood as well. Eagles he arrived at floor. He testified when help possibly could Club for his who looking brother, stamped' them, He he felt feet numb. getting him, this to sense. When drive frying away deadening feeling he thought get he would endeavor failed five took back into his to dance. He feet'by trying steps or and had to desist. Mrs. Margaret Bell, six “Well, partner who was his this testified: endeavor, I didn’t steps know we take over five or six said, to . . . I I me am to have ‘Peggy, guess going take a rain check on don’t because feet dance, my ” “track” and feet numb.’ my are not majority opinion says plaintiff did tell Dr. Butters at the hospital first he was of his taken, the roller injury plain- coaster. The tiff state driven collapse when he was hospital to that and what he have may may said while that condition can be conclusive hardly of the historical facts. In plaintiff tes- addition, tifed that mention was made at the Franklin Hospital of the ride at Conneaut. That very same Wood day, *16 was transferred to the Hamot Hospital where he gave a of history the roller coaster ride hospital and the records bear this out. In it disputed is not addition, of very night while at accident, Eagles he of Club, spoke, violent roller coaster ride, to Bichard who Bell, testified: “He Wood said had a in snapping the backward or some- direction, thing that effect and he noticed after after that, he came off the ride that he had severe pains in the head and headache, prevailed rather, there throughout the afternoon and evening.”
With even only this scant review of the record, can how the majority possibly justify its rendering a judgment n.o.v.? It is understood that in the rare- judges be high not to atmosphere are court, of a fied litigants. Even plight by sympathy for the moved away a verdict—which not take court should a so, helpless a crutches—from medicine and means bread, are cripple, fair when trial, a a verdict won deprivation. justify Such no clear reasons to opinion appear majority reasons do not the record. judgment substituting majority simply
The its is may do for that of the and this it not where opin- pure question majority of fact is involved. The points ion no error the trial which lasted six days. by a half counsel, cause was tried excellent presided very judge the trial who over able properly opinion jury. majority instructed the emphasizes emphasized, does not name- what need to be ly, park that an amusement owner is an insurer patrons. safety absolutely of his That is true. ignore also It is true, that he cannot however, safety. fundamental rules If trac- a railroad or company required proper tion is to exercise due and transports care passengers, when it how much more duty upon park does that devolve an amusement own- er who devises means to paying entertain his cus- duty tomers? He has alluring to see that his engines devices do not become of destruction. Noth- ing can be more cruel negligently than to so maintain a device for entertainment in a that, moment’s time, laughter happiness turns into joy grief, tears, into misery, into elation into disaster —not for a minute, day, not for a but for a lifetime.
If amusement device is hazardous to riders, owner of the device must exercise a care “commensu rate with the risk involved,” “the more hazardous greater the amusement, the required.” the caution criterion was laid down in .This Dorney Lausterer v. Inc., 100 Company, Park Coaster Superior Pa. Ct. 33. *17 from her death fell to girl 16-year-old In case a that fatal averred Her parents coaster. a roller defendant had not have occurred accident -would side or belts safety the cars with equipped company measure “A strict Court said: Superior guards. aof operator is duty required, therefore, de- dangerous an inherently roller as that coaster, high sharp with its vice, inclines, dips, curves, danger which demands care speed, depending to be avoided.”
The trial in jury court that case submitted the question exercised whether the had company proper care protecting patrons preventable against injury. The returned plaintiffs a verdict for the which the Superior Court sustained. owner an park amusement charged device is
with the main- responsibility creating, operating taining his device so that he knows where end thrills and disaster begins. The owner of a shooting gallery, cannot, instance, defend, the event of ricochet- ing bullet which injures a firer passerby even the himself, this is a danger expected be in rifle It shooting. would be his duty, a shoot- maintaining ing gallery for to have hire, the surface receiving bullets constructed of such material the bullets would imbed themselves therein rather than bounce therefrom.
George Wood was a healthy man. He served in World War II as a combat bombardier and aerial gun- ner. As a youth at high school he participated vigorous, competitive, athletic games, particularly basketball. He continued his love sports and often went bowling and with swimming his family. He had good position with the Chicago Pneumatic Tool Com- pany. He is the father of five healthy children. How and why should a person with so salubrious a back- so ground, normal healthy economic and social status, suddenly become a helpless invalid? All
79 tragic ride points in one direction—that but evidence majority arbitrarily turns August 1956. The 19, judg- against enters wind and vane weather supports usurpative function. ment n.o.v. No this law judge indicated, I as have trial well stated it, outstanding repetition: about “The fact bears plaintiff got Streak this this Blue case was only years age hours man a few well and within got helpless cripple rest for after he he was a off, life.” his possible logical explanation There this is no for spelled appalling metamorphosis except clearly the one plaintiff’s majority ignores out this case. The easily upon logical, explanation understood and seizes sheerly arbitrary, one which is one is based on reasoning, inexplica forced assumed circumstances and discarding says majority ble of evidence. The in effect happened way the accident could not have in the by plaintiff accepted described witnesses, by jury judge. and affirmed the trial inBut adopting arbitrary majority conclusion the offends against perhaps what is the most momentous rule this during Court has laid down century the last half province jury trespass namely, cases, “It necessary, not Pennsylvania under law, every point fact, circumstance unerringly to liabili ty; enough it is that there be sufficient for facts say reasonably preponderance that favors liability.” Telephone Smith v. Bell Co., Pa. 134. In the case at bar the only say facts not that the' preponderance favors liability, they overwhelming-' ly liability! favor entering judgment n.o.v. this ease is only day George sad M. jus- Wood, but for vigorously register and I
tice, my opposition thereto. joins Mr. Justice O’Bkien opin- this dissenting ion.