Coley v. Garris

361 S.E.2d 427 (1987)

87 N.C. App. 493

Lena L. COLEY, Administratrix of the Estate of Albert Lee Coley v. Preston Franklin GARRIS and Dorothy Garris Whitehurst.

No. 878SC353.

Court of Appeals of North Carolina.

November 3, 1987.

*428 Bailey, Dixon, Wooten, McDonald, Fountain & Walker by Wright T. Dixon, Jr., Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey and Susan K. Burkhart, for defendants-appellees.

MARTIN, Judge.

By her first assignment of error, plaintiff contends that Trooper Booth's opinion as to the speed of Coley's motorcycle should have been excluded because it was not based upon his personal observation of the events in question. We agree.

It has long been the rule in North Carolina that "one who did not see a vehicle in motion will not be permitted to give an opinion as to its speed." Tyndall v. Hines Co., 226 N.C. 620, 623, 39 S.E.2d 828, 830 (1946).

A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require.

Shaw v. Sylvester, 253 N.C. 176, 180, 116 S.E.2d 351, 355 (1960). Accord Johnson v. Yates, 31 N.C.App. 358, 229 S.E.2d 309 (1976). The foregoing rule has not been changed by the adoption of G.S. 8C-1, Rule 702. Hicks v. Reavis, 78 N.C.App. 315, 337 S.E.2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986). See, however, 1 H. Brandis on North Carolina Evidence, § 131, n. 78 (1986 Cum.Supp.).

Defendants concede that Trooper Booth's testimony was inadmissible, but argue that the error does not entitle plaintiff to a new trial for two reasons. First, defendants contend that plaintiff failed to preserve her objection to the improper testimony because she did not move to strike it. We disagree. G.S. 8C-1, Rule 103(a)(1) requires "a timely objection or motion to strike ..." in order to assign error to a ruling admitting evidence. (emphasis added). "No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court." Id. In the present case, plaintiff entered a timely objection to the question eliciting Trooper Booth's opinion as to the speed of the motorcycle; a further motion to strike his answer was not required.

Next, defendants argue that the erroneous admission of the testimony was not prejudicial to the plaintiff's case and does not require that she be granted a new trial. We also reject this argument. A review of the transcript reveals that defendants' theory of Coley's contributory negligence was based, in large part, on their contention that he had operated the motorcycle at an excessive and unlawful speed, depriving him of proper control and the ability to avoid the collision. The two eyewitnesses to the collision testified that the motorcycle was travelling at, or slightly in excess of, the speed limit. Trooper Booth's testimony placing the speed of the motorcycle at 75 miles per hour was, without question, material to the defense which defendants sought to establish. Moreover, Trooper Booth "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." Tyndall, supra, 226 N.C. at 623, 39 S.E.2d at 830.

In view of our disposition of plaintiff's first assignment of error, we find it unnecessary to discuss the other assignments of error brought forward in her brief. For *429 the reasons stated, she is entitled to a new trial.

New trial.

EAGLES and PARKER, JJ., concur.