On appeal from the Supreme Court.
For the defendant-appellant, Maurice J. McKeown.
For the plaintiff-respondent, Leopold Frankel.
The opinion of the court was delivered by
BODINE, J. The plaintiff had a judgment at the Essex Circuit. She suffered serious personal injuries while riding in an amusement device known as a "Virginia Reel," situate in the defendant's amusement park to which she had paid admission. The device broadly consists of a carriage in which passengers sit. Raised to a height, the force of gravity causes the car to descend and ascend over a curving track making turns as it goes. While coming down on a reverse
curve the car jerked, throwing the plaintiff out of her seat, although she was holding on to the handholds provided. Her back was injured by contact with a metal pipe lining the inner rim of the seats where she had been placed. The plaintiff, a practical nurse, had a congenital dislocation of the hip causing a slight limp, but previously it had in no way interfered with her ability to walk or run.
The proofs indicate that the operator of the car may not have exercised due care in watching the car, in order to determine when to apply the brakes, and further that the device may have been improperly constructed and improperly loaded.
Jacob London, an expert called by the plaintiff, was properly qualified to give opinion evidence in this case. He appears to have been an engineer by training and practice, and also designer of an amusement device known as the "Sky Ride," recently operated at the Chicago World's Fair. He made a complete examination of the "Virginia Reel" in question, and had studied not only its construction but also its operation. He had made a diagram approximately to scale and also a model to illustrate his testimony. The competency of such a witness rests in the sound discretion of the trial court. Electric Park Co. v. Psichos, 83 N.J.L. 262. The trial court's decision will not be disturbed lightly (Riley v. Camden and Trenton Railway Co., 70 Id. 289), and never will it be disturbed if there be legal evidence to support it. Holden v. Rolff, 110 Id. 499; Ross v. Commissioners of Palisades Interstate Park, 90 Id. 461.
"The test by which the trial court is to determine the competency of a witness offered as an expert, to give expert testimony, has been laid down in several recent cases in this court. The rule enunciated in Elvins v. Delaware and Atlantic Telephone Co., 63 Id. 243, 247, cited at the trial, that the witness must have some special knowledge of the subject, has been reiterated in Pennsylvania, &c., Railroad Co. v. Schwarz, 75 Id. 801 (damage to real estate by a tunnel two hundred feet below the surface); VanNess v. Telephone Co., 78 Id. 511 (shade trees), and Crosby v. East Orange,
84 Id. 708 (drying up of a well)." Burrough v. New Jersey Gas Co., 88 Id. 643, 644.
The witness, although he had never designed a "Virginia Reel," clearly displayed special knowledge of the subject-matter concerning which his opinion was asked. He had special knowledge by reason of his training and special study of the construction and operation of the device in question. Castner v. Sliker, 33 Id. 507; Risley v. Ocean City Development Co., 75 Id. 840. The model used by the witness to illustrate his testimony ...