Short ex rel. Short v. Short

ERWIN, Judge. The dispositive assignment of error in this case is that the trial court erred in allowing the investigating officer, who arrived at the scene sometime after the accident occurred, to testify as follows: [262] “Q. Based on his (defendant’s) statement to you and your own observations there at the scene, did you have any reason to believe he (defendant) was going over 55? MR. Hamrick: Objection. THE COURT: Overruled. MR. Hamrick: Exception. A. No sir. Q. You accepted his statement as to his speed there? A. It seemed reasonable to me. MR. HAMRICK: Objection and move to strike. THE COURT: Overruled and denied.” We hold the admission of this evidence to be prejudicial error. The above-quoted testimony clearly amounted to an expression of opinion by the officer as to the speed of defendant’s vehicle when he did not see the vehicle in operation. The applicable rule is well stated in 1 Stansbury, N.C. Evidence § 131 (Brandis Rev. 1973): “The opinion of a witness, whether lay or expert, will not be received when he did not observe the critical events, but bases his testimony on the appearances at the scene which he later observed and can adequately describe to the jury.” Our Supreme Court stated in Tyndall v. Hines Co., 226 N.C. 620, 623, 39 S.E. 2d 828, 830 (1946): “. . . one who did not see a vehicle in motion will not be permitted to give an opinion as to its speed. The ‘opinion’ must be a fact observed. The witness must speak of facts within his knowledge. He cannot, under the guise of an opinion, give his deductive conclusion from what he saw and knew . . .” See also Johnson v. Yates, 31 N.C. App. 358, 229 S.E. 2d 309 (1976). In finding this error to be prejudicial, we follow the reasoning of our Supreme Court in Tyndall v. Hines Co., supra, at 623, a case which also involved the testimony of a highway patrolman who did not observe the accident: [263] “On this record the admission of this evidence, in our opinion, was prejudicial to the defendants. The witness was a State employee whose duty it was to make a disinterested and impartial investigation of the accident. In so doing he was a representative of the State. His testimony should, and no doubt did, carry great weight with the jury.” Accordingly, plaintiffs are awarded a New trial. Judges BRITT and CLARK concur.