Tyndall v. Harvey C. Hines Co.

• Decision Date: 30 October 1946
• Docket Number: 386
• Parties: TYNDALL v. HARVEY C. HINES CO. et al.
• Court: North Carolina Supreme Court

39 S.E.2d 828

226 N.C. 620

TYNDALL v. HARVEY C. HINES CO. et al.

No. 386

Supreme Court of North Carolina

October 30, 1946

Civil action to recover damages for personal injuries.

On June 12, 1944, about 3 p.m., plaintiff, her sister and her smaller brother were walking single file on the lefthand shoulder of Highway 258, going toward Kinston. They were about 300 yards from the crest of a hill to their rear. The highway, after reaching the crest of the hill, curved slightly to the right.

At the same time defendant Gray was operating an ice cream truck belonging to the corporate defendant, on said highway, going in the same direction. When the truck reached the crest of the hill it did not turn with the curve but continued in a straight direction across the left hand lane of traffic onto the left shoulder. There it struck plaintiff and inflicted certain bodily injuries. It also struck and killed her sister. It then cut back to the righthand shoulder, then again to the left, and stopped 224 yards from the point of impact.

Plaintiff offered evidence tending to show that the truck was being operated at from 50 to 60 m.p.h. There was evidence for defendants tending to show that the driver, just as he reached the crest of the hill, lost consciousness; that the automobile was being operated at a reasonable rate of speed and that the steering apparatus suddenly and unexpectedly became locked or unworkable, thus preventing the driver from turning with the curve.

The usual issues of negligence and damages were submitted to the jury and answered in favor of plaintiff. The court entered judgment on the verdict and defendants appealed.

Allen & Allen and John G. Dawson, all of Kinston, for appellants.

J. A Jones and Albert W. Cowper, both of Kinston, for appellee.

BARNHILL Justice.

About an hour after the accident, T. W. Fearing, a State highway patrolman, went to the scene of the accident to make an investigation. He gave testimony as to the marks the truck made on the shoulders of the road and upon the grass. He testified they were not brake marks but were marks made when the truck made a sudden turn, thus shifting the weight to one side or the other. He was then asked this question:

'Mr. Fearing, leaving out of consideration for the purpose of this question any reference to the distances the bodies were found from the point of impact, and basing your opinion upon the marks you found made by the truck on the road immediately before and continuing through the point of impact and to the point where the truck was found by you, do you have an opinion satisfactory to yourself as to the rate of speed at which the truck was being driven at the time of the impact?'

Over the objection of defendants he was permitted to answer the question in the affirmative and to give his opinion that the truck was at the time being operated at a rate of speed of from 50 to 60 m.p.h.

The admission of this testimony is the basis of one of defendants' primary assignments of error. We are constrained to hold that the assignment is well advised and should be sustained.

The general rule is that a witness must speak to facts. Following this rule the courts originally confined opinion evidence to questions of science, art, or skill in some particular branch of trade and to cases of sanity and the like. Bailey v. Poole, 35 N.C. 404.

But this rule is too narrow to meet the needs of everyday life and to protect the rights of citizens in courts of justice. It is practically impossible to give intelligible evidence as to some facts except through the medium of an opinion. The opinion of the observer is the only practical method of placing before the jury in a general and broad way a group of facts which in detail would be difficult of description but which as a whole make up a certain conception grasped at once by the mind. Marshall v. Interstate Telephone Co., 181 N.C. 292, 106 S.E. 818.

Hence there developed another wellrecognized rule which permits a common observer to give testimony as to the results of his observations made at the time in regard to common appearances, facts and conditions which cannot be reproduced and made palpable to a jury, Britt v. Carolina Northern R. Co., 148 N.C. 37, 61 S.E. 601; Marshall v. Interstate Telephone Co., supra; Morris v. Lambeth, 203 N.C. 695, 166 S.E. 790; Teseneer v. Henrietta Mills Co., 209 N.C. 615, 184 S.E. 535; State v. Kincaid, 183 N.C. 709, 110 S.E. 612, or cannot be stated or described in such language as will enable persons, not eyewitnesses, to form an accurate judgment in regard to it. Steele v. Cox, 225 N.C. 726, 36 S.E.2d 288; Clary's Adm'rs v. Clary, 24 N.C. 78; 22 C.J.S., Criminal Law, s 360, p. 530; Britt v. Carolina Northern R. Co., supra; Kepley v. Kirk, 191 N.C. 690, 132 S.E. 788; Street v. Erskine-Ramsey Coal Co., 196 N.C. 178, 145 S.E. 11; Stansbury, N.C.Evidence, 227, sec. 122 et seq.

There is a distinct difference between the opinion evidence of the expert under the rule first stated and that of the layman under the second.

The expert does not speak about what he saw. He gives the ultimate fact to be deduced from facts assumed, gathered from the testimony offered. He is permitted thus to invade the province of the jury for the reason lay jurors do not possess the expert knowledge, skill, or training necessary to enable them to make the deduction for themselves.

The lay witness gives a shorthand statement, in the form of an opinion, of the facts observed, when this is the only practical method of intelligently stating what he saw. How can a witness clearly and concisely describe the rapidity of the forward motion of an object other than by stating the impression of its speed, in the terms of m.p.h., formed when he saw the object in motion? He simply gives all the general facts, which in detail would be difficult of description, in the short and understandable expression of his opinion formed at the time and based on what he observed.

So now, any person of ordinary intelligence who has had an opportunity for observation is competent to testify as to...