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Kahalili v. Rosecliff Realty Inc.

Decided: May 5, 1958.

COLLEEN CLARK KAHALILI, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
ROSECLIFF REALTY, INC., DEFENDANT-RESPONDENT, CROSS-APPELLANT



On certified appeal from the Appellate Division of the Superior Court.

For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.

Heher

[26 NJ Page 598] We certified for appeal, on plaintiff's petition and defendant's cross-petition, 25 N.J. 297 (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 (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 bring 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 ...


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