Johnson v. Yates , 31 N.C. App. 358 ( 1976 )

229 S.E.2d 309 (1976)

Mildred S. JOHNSON, Administratrix of the Estate of Philip Randall Johnson, Deceased
v.
Lynwood Edward YATES, Jr., and Lynwood Edward Yates, Sr.

No. 764SC478.

Court of Appeals of North Carolina.

November 3, 1976.

Brock & Foy by Donald P. Brock, Trenton, for plaintiff-appellee.

Jeffress, Hodges, Morris & Rochelle, P.A. by Thomas H. Morris, Kinston, for defendants-appellants.

BRITT, Judge.

Defendants assign as error the admission of testimony by Trooper Gregory that in his opinion the speed of the vehicle in question immediately before the accident was "from 70 to 80" m. p. h., this opinion being based on physical evidence found at the scene following the accident. The assignment is sustained.

The rule applicable in the present case is well stated in 1 Stansbury, N.C. Evidence § 131 (Brandis Rev.1973) thusly: "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."

The leading case in this area of the law and the one most factually in point with the instant case is Tyndall v. Hines Co., 226 N.C. 620, 39 S.E.2d 828 (1946). In that personal injury case, a State highway patrolman was allowed to give his opinion as to the speed of defendant's car based on the tire marks and conditions observed by him at the scene of the accident. The Supreme Court in granting a new trial for the defendant stated that:

". . . [O]ne 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. . ."

For other cases adhering to the stated principle see Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351 (1960); Carruthers v. R. R., 232 N.C. 183, 59 S.E.2d 782 (1950); Webb v. Hutchins, 228 N.C. 1, 44 S.E.2d 350 (1947); State v. Roberson, 240 N.C. 745, 83 S.E.2d 798 (1954).

Plaintiff now concedes that the trial court erred in admitting the testimony but argues that the error was harmless and not sufficiently prejudicial to require a new trial. A careful review of controlling authorities impels us to reject plaintiff's argument.

In Tyndall v. Hines Co., supra, 226 N.C. pp. 623-24, 39 S.E.2d p. 830, the Supreme Court said:

"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.

"His testimony was material to the issue being tried. Excessive and unlawful speed is paramounted in the complaint, in the testimony, and in the charge of the court as one of the primary acts of negligence relied on by plaintiff. The manner of operation of the truck, due to its speed, was reckless and unlawful; the excessive speed caused the driver to lose control.. . . this was the theory of the trial. So then any evidence tending to prove an unlawful rate of speed had a direct bearing on the cause of action plaintiff was seeking to establish.

"Furthermore, in its charge to the jury, the court made special reference to the testimony of this witness, to his official position and to his statement that the car was traveling from 50 to 60 m. p. h."

We are unable to distinguish Tyndall from the case at bar, therefore, we hold that the error complained of was sufficiently prejudicial to entitle defendants to a new trial.

Defendants assign as error the submission to the jury the issue with respect to willful and wanton negligence. We find no merit in this assignment.

Where the death of a plaintiff's intestate is the result of willful and wanton conduct on the part of the defendant, the intestate's contributory negligence will not bar recovery. And where the plaintiff alleges and offers evidence tending to show that willful and wanton conduct on the part of the defendant proximately caused the intestate's death, it is error for the trial court to refuse to submit plaintiff's tendered issue as to the willful and wanton negligence of the defendant. Pearce v. Barham, 271 N.C. 285, 156 S.E.2d 290 (1967); Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971), aff'g, 10 N.C.App. 515, 179 S.E.2d 160 (1971).

We hold that the allegations in the complaint and the evidence presented at the trial in the case at bar required the trial judge to submit plaintiff's tendered issue as to the willful and wanton negligence of defendants. Since a new trial is being ordered for the reasons set forth above, the question then arises would plaintiff be entitled to have the issue submitted in the absence of opinion testimony as to the speed of the vehicle. We answer that question in the affirmative.

While evidence of willful and wanton conduct in the instant case is not as strong as that presented in Pearce and Brewer, we think it was sufficient to warrant a submission of the issue even without the opinion testimony as to speed. Plaintiff's evidence tended to show that defendant driver, after drinking a quantity of intoxicants sufficient to cause his blood content of alcohol to be .17, operated the pick-up truck in which intestate was riding as a passenger over a narrow rural paved road, in the nighttime, at a speed so great that when said driver lost control of the vehicle it slid on the paved portion of the road 260 feet, then slid on the ground adjoining the road 137 feet, and then struck a tree with a 12-inch trunk with such force that the tree was uprooted and mashed into and around the vehicle. Opinion testimony by the investigating trooper was not necessary for the jury to draw its own conclusion that the vehicle was being driven greatly in excess of the posted speed limit of 55 m. p. h.

We find it unnecessary to discuss the other other assignments of error brought forward and argued in defendants' brief.

For the reasons stated above, defendants are awarded a

New trial.

VAUGHN and MARTIN, JJ., concur.