Opinion
No. COA03-1076
Filed June 1, 2004 This case not for publication
Appeal by plaintiff from judgment entered 8 October 2002 and order entered 24 February 2004 by Judge Alice C. Stubbs in the District Court in Wake County. Heard in the Court of Appeals 29 April 2004.
E. Gregory Stott, for plaintiff-appellant. Bailey Dixon, L.L.P., by Kenyann Brown Stanford and Hannah G. Styron, for defendant-appellees.
Wake County No. 00 CVD 11053.
Plaintiff filed suit 26 September 2000 seeking monetary damages for personal injuries she sustained in a collision between her car and one driven by defendant Gloria Kent ("defendant"). In their answer, defendants denied negligence. At trial, plaintiff testified, as did her husband and doctor. At the close of her evidence, plaintiff moved for directed verdict on the issues of negligence and contributory negligence, but the court denied the motion.
Defendant was not present, but her attorney offered the testimony of Trooper C.V. Barrett. At the close of the evidence, plaintiff again moved for directed verdict on negligence and contributory negligence, and the court again denied the motions. Plaintiff then moved the court to reconsider its ruling, which motion the court denied as well.
The jury returned a verdict finding that defendant was negligent and that plaintiff, by her own negligence, contributed to the accident. Plaintiff moved for judgment notwithstanding the verdict, which motion the court denied. Plaintiff appeals contending that the court erred in allowing Trooper Barrett to testify regarding his opinions and conclusions about the accident and that she should be accorded a new trial. We agree.
The evidence tended to show that at 7:40 a.m. on 28 August 2000, plaintiff was driving to her home on Red Amber Hill Circle in Garner. As she approached her driveway, plaintiff slowed down and signaled a right turn. Defendant was driving behind plaintiff on Red Amber Hill Circle. When plaintiff slowed, defendant moved onto the right-hand shoulder of the road, and kept moving onto plaintiff's front yard where she struck the front right-hand corner of plaintiff's car with the left front of her own vehicle.
Plaintiff and her doctor testified about her injuries and medical expenses. Trooper Barrett, the officer who investigated the accident, also testified. He first testified that he had not witnessed the accident, and that by the time he arrived, the vehicles had been moved and defendant had left the scene. He was neither tendered nor accepted as an expert in accident reconstruction. Trooper Barrett then testified, in pertinent part, as follows:
Q: Officer — I'm sorry. Trooper Barrett, through your — the investigation that you conducted of this accident is there any evidence as far as you — you observed that day that Ms. Strickland, the plaintiff, failed to stay on the right side of the road?
Plaintiff counsel: Objection.
Court: Overruled.
A: Can you ask the question again, please?
Q: Sure. The accident that you have investigated on August 28, 2000 is there any evidence from your investigation indicating that the plaintiff failed to stay on the right side of the road?
Plaintiff counsel: Objection.
Court: Overruled.
A: Yes, sir. Based on where I have the vehicle located at the vehicle is not completely on the right hand side of the road.
Q: Okay. Based on your accident investigation is there any evidence that the plaintiff, Ms. Strickland, failed to keep a proper lookout?
Plaintiff counsel: Objection, Your Honor. It calls for conclusion of law of who is at fault now and invading the province of the jury.
Court: Sustained.
Q: In the course of your investigation and now we're talking about the defendant, Ms. Kent. Was there anything you saw at the accident scene that indicated that Ms. Kent was not traveling at an appropriate speed?
Plaintiff counsel: Objection again, Your Honor. He's already testified he wasn't there. He's not qualified to give evidence of speed without having seen it. Again, that's an improper question and invading the province of the jury.
Court: Well, I think he can answer that question. I disagree. Overruled.
A: I've — I indicated both vehicles traveling approximately twenty miles an hour.
Q: Okay. And that's prior to impact, correct?
A. Yes, sir.
Q: And at the point of impact, what speeds did you indicate?
Plaintiff counsel: Objection. He wasn't there, Your Honor. He's not qualified to give estimates of speed.
The Court: I agree. I agree with [plaintiff's counsel] Mr. Stott on that. Objection sustained.
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). Our Supreme Court has held:
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); see also Coley v. Garris, 87 N.C. App. 493, 495, 361 S.E.2d 427, 428 (1987), disc. review denied, 321 N.C. 742, 366 S.E.2d 859 (1988).
Here, the court apparently recognized this rule in its last ruling above, but declined to apply it only moments earlier. This was error. Similarly, a witness may not give an opinion as to the location of the vehicles before he arrived without having a basis for that opinion. Strickland v. Doe, 156 N.C. App. 292, 300, 577 S.E.2d 124, 131, disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003) (holding that non-expert witnesses cannot testify about facts related to accident reconstruction). Here, the court sustained several objections to questions seeking to have Trooper Barrett testify as to how the collision occurred. However, the court improperly allowed the trooper to give an opinion, over objection, that the plaintiff was "not completely on the right side of the road" before the collision, without his having seen the events, or stating a basis for that opinion. In closing arguments to the jury, defendant's counsel repeatedly referred to the trooper's testimony as the basis for his claim of contributory negligence on plaintiff's part.
This improperly admitted testimony was the only evidence that could have supported the jury's finding of contributory negligence by plaintiff. Thus, its admission was erroneous and prejudicial.
New trial.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).