Kahalili v. Rosecliff Realty, Inc.

• Decision Date: 05 May 1958
• Docket Number: No. A--69,A--69
• Citation: 141 A.2d 301,26 N.J. 595,66 A.L.R.2d 680
• Parties: , 66 A.L.R.2d 680 Colleen Clark KAHALILI, Plaintiff-Appellant, Cross-Respondent, v. ROSECLIFF REALTY, Inc., Defendant-Respondent, Cross-Appellant
• Court: New Jersey Supreme Court

Page 595

26 N.J. 595

141 A.2d 301, 66 A.L.R.2d 680

Colleen Clark KAHALILI, Plaintiff-Appellant, Cross-Respondent, v. ROSECLIFF REALTY, Inc., Defendant-Respondent, Cross-Appellant

No. A--69.

Supreme Court of New Jersey.

Argued March 3, 1958.

Decided May 5, 1958.

Sigmund Auerbach, Jersey City, argued the cause for plaintiff-appellant and cross-respondent.

Walter G. Winne, Hackensack, argued the cause for defendant-respondent and cross-appellant (Winne & Banta, Hackensack, attorneys).

The opinion of the court was delivered by

HEHER, J.

We certified for appeal, on plaintiff's petition and defendant's cross-petition, 25 N.J. 297, 136 A.2d 78 (1957), a judgment for plaintiff on a jury verdict in an action in tort for negligence by the defendant in the operation of a roller coaster as an entertainment device at its Palisades Amusement Park on the Hudson River in Bergen County, New Jersey. Plaintiff was thrown from the vehicle as it descended the railway by force of gravity on a 'ride' known as the 'Cyclone,' for which she had paid the patron's fee, and was severely injured. The mishap occurred April 23, 1954, between 3 and 4 p.m.

The trial judge denied defendant's motion for a new trial on the asserted ground that the verdict was against the weight of the evidence. A verdict for plaintiff on a prior trial was set aside on that hypothesis.

The Appellate Division, 46 N.J.Super. 1, 133 A.2d 688 (App.Div.1957), found that the evidence raised an issue for the jury as to the use of reasonable care in the inspection of the apparatus and causation, and the verdict would be sustainable were that the sole criterion, but that it was reversible error to submit 'another theory of liability to the jury under the doctrine of Res ipsa loquitur.' The holding in this behalf was that there was no warrant in the proofs for the trial court's conclusion that there was 'that kind of occurrence insofar as the roller coaster itself, as distinguished from the plaintiff, over whom defendant had no control, was concerned,' I.e., 'one 'which in the ordinary course of things would not take place if the person in control were exercising due care"; and it could not be known whether 'in finding for the plaintiff, the jury was relying on the evidence of specific negligence as to the loose bar or the circumstantial evidence of negligence constituted by the doctrine of Res ipsa loquitur, both theories being allowed by the court's charge,' and as it may have been the latter, there was prejudicial misdirection.

By the cross-petition for certification, defendant urged that, if certification be granted, 'it should being up the whole record and determine the law regarding Res ipsa loquitur and its application,' and if cross-certification is granted, 'there should be argued also' the question of the propriety of the trial judge's refusal to dismiss the action at the conclusion of plaintiff's case and at the close of the whole case, and to set aside the verdict as contrary to the weight of credible evidence.

We shall not consider whether cross-certification is needed to this end. Ordinarily, it is open to the respondent to sustain the reversal upon any ground argued in the intermediate appellate tribunal, even though not there considered or found not good cause for reversal.

These are the essential facts: the device consists of a train of three open cars, coupled together, three successive seats in each car, each seat equipped with a stationary 'safety bar' extending laterally 'directly above the seat * * * over (the seated passenger's) thighs,' moving by force of gravity and momentum on tracks with sharp dips and curves; at the entrance or left-hand side of the car, 'the bar is angled off so that a passenger may enter the car'; one 'cannot walk directly into that car'; one 'must step into the car, step down in the car, and sit in the seat and slide over'; the right-hand side of the car 'facing forward * * * is closed'; the safety bar is not movable by the passenger in its normal state; when the car 'travels along the straightaway,' it is 'naturally level across'; the cars 'are banked (on a curve) to hold the person or the object that is being carried square with the track'; the track 'is banked'; the passenger 'is sitting square, * * * sitting square with the track'; that 'is done to counteract the centrifugal forces which would naturally throw the person--not throw them, but move their body towards the outside of the curve'; each coaster 'is designed for the certain spot'; in 'this case, the open side of the car is always on the inside of the curve'; the 'high part of the bank is the closed side of the car'; and the 'centrifugal forces operate on the passenger * * * towards the closed side.'

All this came from one McKee, a mechanical expert associated with defendant, who had designed the device in 1944. His experience covered 51 years in designing, building or operating roller coasters, some 300 in number.

Apparently, the seat bar was intended to keep the passenger in a secure position while the train was in motion. No doubt, the passenger would instinctively take hold of the bar during the movement of the train. But there was nothing by way of notice or warning to indicate that manual attachment to the bar was a safety measure; indeed, it is clear that this course was not deemed necessary to avert danger. On the other hand, there was a posted warning to the patron not to stand in the car but to remain seated.

The bar was so placed that, in its fixed position, it would protect the passenger against forcible expulsion on one side, but not on the other. And so, the patron could enter and leave the car from but one side, where the bar was set at a sufficient distance from the side of the car to permit his movement into and out of the car.

The evidence establishes, as the jury could and no doubt did find, that plaintiff was seated and not standing in the car when she was hurled to the runway. Plaintiff had taken a ride with a male companion which was without incident; she remained for another ride alone, but it was not taken in the same car, she said; she 'moved back 3 or 4 seats'; the price was paid to the attendant at the platform; when the train reached the 'top of the incline,' she 'took hold of the bar'; 'the bar was loose,' and she let go and 'held onto the sides of the car, to both sides'; '(the bar) jiggled back and forth'; she 'held on that way for some time, and (she) was being pushed back and forth in the car'; she turned to 'some young ladies riding in a car in back of (her),' still 'holding * * * onto the back of (the) seat,' and tried to 'let them know of the difficulty,' and 'then suddenly (she) felt a different lurch, rather strong, and (she) went out of the car'; it 'was a different lurch and a sudden lurch'--'a different lurch than the turns or the curves that you go around.'

Plaintiff testified that she did not stand in the car; and in this she was corroborated by the three girls in the car to the rear, called as witnesses by defendant, one a daughter of a park employee, all guests of the park management at the time. All three testified that while seated (she did not stand at any time), plaintiff was thrown from the car. One said that she 'was sitting there swaying back and forth in the car * * * she was sitting on the side where you get in the car, and as the car went around the turn, she slid to the side and went out under the bar head first.' Another 'saw her go over the bar and out through the side'; and the third said 'she fell over the bar * * * she went over the bar.' All three agreed that she 'was swaying back and forth'; it seemed to be a new experience for her, one that gave concern, and they told her 'to hold on'; they themselves found it necessary to 'hold on' because of the speed and sway in descent. She held the bar 'with one hand' for a time. These girls, 17, 18 and 19 years of age, were frequently there as guests of the park management and they had ridden on the roller coaster 'many times.'

Defendant also offered evidence designed to show that after the mishap the bar was in its normal rigid state; but there was a real question as to whether the car inspected was in fact the one occupied by plaintiff on the second ride, and in any event the issue was peculiarly the jury's province.

Moreover, defendant's specialist, McKee, testified that if the passenger remains seated in the car, 'there is very little likelihood of the passenger falling out'; '(i)f the passenger remains seated in the car, with or without that safety bar, they (sic) would come home.' The purpose of the bar, the witness said, is 'to prevent a person, a passenger, from standing up'; '(t)hey can get partly up, but that throws the center of gravity higher'; '(w)hen they hit a curve, it has more force to throw them out'; '(i)f they remain in the seat, they must come home'; a strap is used on 'kiddy cars because at times we have little children'; '(w)e tried years ago to strap the people in on a roller coaster; the straps were all right, but the passengers once in a while would unbuckle the strap.'

We do not have here an assumption of inherent and obvious and necessary dangers, as in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173 (Ct.App.1929) invoked by defendant, but rather a use so fraught with danger of serious bodily harm as to justify the belief that precautions of some kind must have been taken to avert it, as in O'Callaghan v. Dellwood Park Co., 242 Ill. 336, 89 N.E. 1005, 26 L.R.A.,N.S., 1054 (Sup.Ct.1909), cited by Cardozo, C.J., in Steeplechase. In Dellwood Park Co., the instrumentality was a scenic railway in an amusement park; and the standard of duty was declared to be the same as that applicable to common carriers of passengers, that is, to exercise the 'highest degree of care and caution' for the safety of its passengers and to do all that 'human foresight and vigilance could reasonably do' to that...