Mays v. Butcher

234 S.E.2d 204 (1977) 33 N.C. App. 81

Peggy Andrews MAYS
v.
Herman Nicholas BUTCHER, Individually and Eastern Company.

No. 7625SC803.

Court of Appeals of North Carolina.

April 20, 1977.

Ted S. Douglas, Lenoir, for plaintiff-appellant.

Smathers & Farthing by Edward G. Farthing, Hickory, for defendants-appellees.

MORRIS, Judge.

Although plaintiff made three assignments of error, she presents only one argument in her brief. She contends that the trial judge erred in permitting Officer Coffey, who never observed plaintiff's car in motion, to testify as to the car's speed prior to the collision.

The record discloses the following:

"Q. Officer Coffey, in your investigation, were you able to determine an approximate speed of the vehicle, I mean of the Mays vehicle, prior to the point of impact?

MR. DOUGLAS: OBJECTION to that your Honor. I don't know how he could determine the speed if he was not there.

MR. FARTHING: Your Honor, I need to ask him if he was able to determine it and then I will ask him how?

COURT: OVERRULED.

EXCEPTION NO. 1.

Q. Were you able to determine the speed?

A. From the information given out by the State of North Carolina on stopping distances, I estimated the speed at 45 miles an hour.

Q. And did you in estimating that speed in part base your estimate on the skid marks that you found left by the Mays' car?

A. The skid marks and the stopping distance.

Q. Now of course you were not able to determine the exact speed that the Mays' vehicle was going when it hit the tractor?

A. No way to know that.

Q. But you estimated the speed at least at 45 miles an hour?

A. Yes sir."

Conceding that the question may have been incompetent, the court overruled the objection, and the witness proceeded to answer. The plaintiff made no motion to strike this answer, nor any answer to subsequent questions in the same vein. Plaintiff is not now in a position to complain about error in allowing the testimony to come in. Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778 (1954); Carpenter, Solicitor v. Boyles, 213 N.C. 432, 196 S.E. 850 (1938); Hudson v. Hudson, 21 N.C.App. 412, 204 S.E.2d 697 (1974); Collyer v. Bell, 12 N.C.App. 653, 184 S.E.2d 414 (1971).

Plaintiff's assignments of error are overruled.

No error.

VAUGHN and MARTIN, JJ., concur.