Appeal from judgment of Court of Common Pleas of Crawford County, Sept. T., 1958, No. 161, in case of George M. Wood, Jr. and Betty J. Wood, his wife, v. Conneaut Lake Park, Inc.
Stuart A. Culbertson, with him Paul E. Allen, and Culbertson & Allen, for appellant.
Robert Y. Daniels, with him Michael Hahalyak and John Pepicelli, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurred in the result. Mr. Justice Eagen dissents. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice O'Brien joins in this dissenting opinion.
Plaintiff was seriously injured while riding a roller coaster in an amusement park owned and operated by defendant. He brought an action of trespass against
defendant and a jury found a verdict in his favor in the amount of $75,000.
Defendant asks for judgment non obstante veredicto, which the Court below had denied. It is, of course, hornbook law that the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, but he is not entitled to inferences which amount merely to a guess or conjecture: Bohner v. Eastern Express, Inc., 405 Pa. 463, 466, 469, 175 A.2d 864.
The evidence may be thus summarized:
On August 19, 1956, plaintiff got into a roller coaster car with his wife and two daughters and his cousin and her husband. The car was equipped with individual seat belts and a large handrail to enable a passenger to hold on if he desired. Plaintiff sat in the front seat with his wife and one daughter; the other daughter sat with his cousin and her husband in the rear seat in the same car.
Plaintiff thus described how and what happened: "[After the train] went down the first hill and up [and down] another hill . . . I was becoming concerned about my daughter and I looked over to see how she was standing the ride, and then when I went to straighten my head up, it just seemed to 'freeze' in that position and then just out of the clear blue sky, we were on this bend and I was thrown up again' the side of the car and my wife and child was slammed over again' me and . . . it was at that point that I felt my neck snap, and then this tremendous headache, just momentarily started, and the next thing I knew, we were getting off the car. . . ."
Plaintiff never saw or noticed this bend in the course,*fn* although his family did. When he got off
the roller coaster he sat for about 10 minutes and then walked over 200 yards to his wife's car and drove it back to meet her in the picnic area. She then drove him to the Veterans Club about 40 miles away and left him there. From the Veterans Club he went to the Eagles Club about ten-thirty, to look for his brother and to pick up his own car, intending to drive home. At the Eagles Club, he had difficulty in "navigating," experienced strange sensations in his feet and had great difficulty dancing. Two hours later he decided to go home, but when he went outside to the porch he collapsed. He spent the rest of the night on the porch, and about 7:30 a.m., a policeman saw him and took him to Franklin Hospital. He was examined there by Dr. Butters, who diagnosed his condition as polio and sent him to the Lakeside Hospital, a polio hospital at Erie, Pennsylvania. Several hours later he was taken by ambulance to the Hamot Hospital at Erie, where he remained for approximately two months. He was then taken by ambulance to the Veterans Hospital in Pittsburgh.
A neurosurgeon, Dr. Murl E. Kinal, operated on plaintiff's neck and testified that plaintiff is now permanently paralyzed in his lower body and this paralysis is, in his opinion, the result of the injuries plaintiff sustained in the roller coaster.
It is well settled (1) that defendant is not an insurer: Cooper v. Pittsburgh, 390 Pa. 534, 136 A.2d 463, and cases cited therein; Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145; Schentzel v. Philadelphia National League Club, 173 Pa. Superior Ct. 179, 96 A.2d 181, and (2) that plaintiff must prove by a fair preponderance of the evidence, (a) that defendant was negligent, and (b) that its negligence was the proximate cause of the accident: Markle v. Robert Hall Clothes, 411 Pa. 282, 191 A.2d 374;
design features" in that the track was not adequately banked.*fn**
Dr. Romualdi based his opinion and conclusions as to the allegedly improper construction of the curve where the accident occurred, upon the proper construction of a railroad or highway which has a completely different design. The construction of curves on a highway for automobiles traveling from 40 to 75 miles an hour is, as Dr. Romualdi testified, obviously and unquestionably different from the proper construction of a curve on a roller coaster track. It is clear that this was not an applicable analogy. Far more important, Romualdi's testimony was inadequate to sustain a finding of negligent construction. Romualdi had had no experience in designing wooden structures like this, nor had he analyzed them or examined them before trial. He testified (a) that the lateral acceleration was excessive, but he did not "have knowledge of just how much lateral acceleration a person could take"; and (b) twice in his testimony he refused to say that the design was unsafe, but merely said that it was not the best possible engineering design. However, the evidence showed that from the time the track had been reconstructed several months prior to the accident and until the time of this trial, 1,297,802 "human bodies" (persons) (including all of plaintiff's family) had ridden this course and absorbed the abruptness of this curve without injury. In addition to all of this, (a) plaintiff was riding in a safely handrailed car with seat belts, and (b) admittedly failed to protect himself by holding on (if necessary) to the front rail of the car, and (c) (we repeat) none of
plaintiff's party or any other person on this ride was injured at this curve or bend on this ride, and (d) plaintiff never told his first doctor (Dr. Butters) of this alleged accident on the roller coaster, and (e) plaintiff never commenced this suit or reported his accident to the defendant or presented a claim to the defendant until a few days before the expiration of the two year statute of limitations.
A majority of the Court are of the opinion that plaintiff, because of the lack of definiteness, positiveness and certainty in the testimony of his expert, failed to satisfy his burden of proving defendant's negligence, and for this reason**fn** judgment non obstante veredicto must be entered in favor of defendant: Bohner v. Eastern Express, Inc., 405 Pa., supra; Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878; Wagner v. Somerset Co. Mem. Park, Inc., 372 Pa. 338, 93 A.2d 440.
Judgment reversed and judgment non obstante veredicto entered for defendant.