Wray v. Fairfield Amusement Co.

Decision Date03 January 1940
Citation126 Conn. 221,10 A.2d 600
CourtConnecticut Supreme Court
PartiesWRAY v. FAIRFIELD AMUSEMENT CO.

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by Rose Wray against the Fairfield Amusement Company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant brought to the superior court and tried to jury. From a verdict and judgment for the defendant, plaintiff appeals.

Error and new trial ordered.

Operator of roller coaster could not escape liability for injuries sustained by passenger on ground that passenger because of defective bone condition was susceptible to fractures and that she assumed the risk attendant on even the normal operation of the device, since, in the absence of some negligent act of the operator, neither cause of action nor an occasion for application of the doctrine would arise.

Mark C. Candee, of Greenwich, for appellant.

William Reeves, of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

JENNINGS, Judge.

The plaintiff, a passenger for hire on a roller coaster operated by the defendant, was injured. Her appeal from an adverse judgment is based on certain rulings on evidence and on the charge to the jury.

The plaintiff called Charles J. Falk as an expert on the maintenance and operation of scenic railways. He testified that he had been employed for ten years as an inspector of elevators by the city of New York and that his duties included the inspection of amusement devices such as roller coasters, that there were two such devices in his jurisdiction and that he had observed and examined similar devices at Coney Island, Asbury Park and Rye. A description given by the defendant dealing with the length of the particular ride, its time and various other conditions was read to him and a plan and photograph of the device in question were shown to him. He then testified that he was able to determine the nature and character of the ride in question and that there were certain things employed for the protection of passengers according to the generally accepted use, custom and practice of roller coaster operators. A question as to what those things were was excluded on objection, the court saying: ‘ Yes, it is quite apparent his knowledge is only that of somebody who knows what is happening down in New York City. I don't believe he is qualified to give an opinion in the first place, even if it is admissible.’

The reasons given for the exclusion of this question are not convincing nor have any others been suggested which make it objectionable. His experience of ten years in territory similar to and adjoining that in which the defendant operated was extensive. He was not asked his opinion. He was asked to testify to the fact as to what general use, custom and practice existed.

While, as stated, the opinion of the witness was not asked, he was offered as an expert in the sense that he had special knowledge of the subject in question. Bryan v. Branford, 50 Conn. 246, 248. The question under consideration arises ordinarily when an objection to the qualifications of an expert are overruled and it is rate that a ruling on the allowance of such testimony is found erroneous, since the qualification of an expert is in the discretion of the trial court. Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370, L.R.A.,1915E, 959; Stressman v. Vitiello, 114 Conn. 370, 375, 158 A. 879; Aubrey v. Meriden, 121 Conn. 361, 368, 185 A. 87. The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence. Where it clearly appears that an expert witness is qualified to give an opinion, the exclusion of his testimony may be found to be erroneous. Germania Life Ins. Co. v. Ross-Lewin, 24 Colo. 43, 53, 51 P. 488,65 Am.St.Rep. 215. See also State v. Main, 69 Conn. 123, 141, 37 A. 80,36 L.R.A. 623, 61 Am.St.Rep. 30; Fayette v. Chesterville, 77 Me. 28, 33, 52 Am.Rep. 741. The general use, custom and practice which existed in the operation of the device was relevant upon the issue whether the defendant had exercised reasonable care. Firszt v. Capitol Park Realty Co., 98 Conn. 627, 639, 120 A. 300, 29 A.L.R. 17; Dibble v. New York, N.H. & H. R. Co., 100 Conn. 130, 140, 123 A. 124; Pope Foundation, Inc. v. New York, N.H. & H. R. Co., 106 Conn. 423, 435, 138 A. 444; Sickmund v. Connecticut Co., 122 Conn. 375, 382, 189 A. 876. Since the witness was not allowed to testify, his testimony is not in the record. The statement in the finding is clear as to what information the plaintiff was seeking to elicit. Herzing v. Sandberg, 54 Mont. 538, 542, 172 P. 132. The cases cited show that this information was relevant and might have proved important. The refusal to allow the witness to testify was an abuse of discretion.

The defendant offered evidence by several witnesses that if a hat or sandbag were placed on the seat of a car, it would remain unmoved on the seat throughout the entire ride. These witnesses as experts further testified that air pressure tends to hold passengers against the back of the seat and that on a down grade a passenger is thrown not forward but back. In rebuttal the plaintiff recalled Mr Falk who had already testified that from information in evidence he could determine the nature and character of the ride in question. After testifying further that he had had frequent occasion to ride on similar roller coasters, he was then asked whether in the course of his duties he had had occasion to make tests to determine in which way force exerts itself when a car on such a railway goes down a dip. On objection the question was excluded, as were further questions along the same line, on the ground that he had no experience with the roller coaster in question. While he was not offered as a technical expert, the conditions surrounding the experiments performed by the witness, as far as developed, made his testimony relevant and to exclude it was error. Sickmund v. Connecticut Co., supra. To make evidence of experiments performed out of court admissible the conditions need not be identical but should be essentially similar, that is, similar in all those factors necessary to make...

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