McLaughlin, Hastie and Forman, Circuit Judges.
GERALD McLAUGHLIN, Circuit Judge.
Appellant, George M. Wood, Jr., appeals from the dismissal below of his complaint captioned "Complaint to Vacate the Order of the Supreme Court of Pennsylvania Reversing the Judgment of the Lower Court (Common Pleas Court of Crawford County, Pennsylvania) and Entering Judgment N.O.V. for Defendant."
Appellant, plaintiff in the Pennsylvania trial court, filed an action in trespass seeking damages for injuries he sustained as a result of the alleged negligence of defendant, Conneaut Lake Park, Inc., appellee here, in the operation and design of its roller coaster called the Blue Streak. After a trial of six and one-half days, the jury returned a verdict of $75,000 for plaintiff. Defendant's motion for a new trial or judgment non obstante veredicto was denied by the trial judge. This was appealed to the Supreme Court of Pennsylvania which in a four to three decision reversed the trial court and entered judgment n.o.v. for defendant. Wood v. Conneaut Lake Park, Inc., 417 Pa. 58, 209 A.2d 268 (1965). Plaintiff's petition for reargument was denied as was his petition for certiorari to the United States Supreme Court. 382 U.S. 865, 86 S. Ct. 132, 15 L. Ed. 2d 103 (1965).
Claiming that the decision of the Supreme Court of Pennsylvania constituted a violation of the due process clause of the Fourteenth Amendment, appellant filed an action in the District Court. His argument both below and before this Court is that the Supreme Court of Pennsylvania in granting defendant's motion for a judgment n.o.v. acted as the determiner and arbiter of facts and in so doing found facts which have no support in the record. Appellant supports his assertion by relying on the dissenting opinion of the state supreme court which expressed displeasure with the majority opinion. Appellant also dissects the majority opinion in an attempt to indicate it has no support in the record and in some instances is contrary to the facts brought out at trial.
The District Court dismissed the complaint finding it had no appellate jurisdiction to consider the case as a review of the action of the highest state court, and alternatively, if it was to be treated as an original action, appellant showed no basis for his allegation of deprivation of due process under the Fourteenth Amendment. Wood v. Conneaut Lake Park, Inc., 258 F. Supp. 777, 780 (D.C.W.D.Pa.1966).
We have independently reviewed the state court record and our examination indicates that appellant's contentions do not rise to constitutional dimensions. Since appellant claims there is not support for the majority opinion, we quote at length that portion of the opinion with which issue is taken:
"Plaintiff produced one witness to prove this crucial point of causal negligence. Dr. James Romualdi, an Associate Professor of Civil Engineering at Carnegie Institute of Technology, was plaintiff's witness. He examined the construction plans of the track and physically inspected it for 20-25 minutes during the trial, nearly six years after the accident. Cf. Murray v. Siegal, 413 Pa. 23, 29, 195 A.2d 790. He testified (a) in general as to the engineering principles involved and (b) in particular that 'with respect to the design and construction of the track itself there was a very serious violation of good, sound engineering design features' in that the track was not adequately banked.
"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. Romauldi 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." Wood v. Conneaut Lake Park, Inc., supra, 417 Pa. at pages 62-64, 209 A.2d at pp. 270-271.
Appellant urges error in the court's statement that Dr. Romualdi had no experience in analyzing wooden structures such as the Blue Streak and in his use of the highway analogy. However, an examination of the record reveals the following statements by Romualdi in response to defense counsel's questions:
"A. * * * So in this respect, I would say yes, I have analyzed a structure of the general type of the Blue Streak.
A. Yes, sir, I have never ...