Kaczala v. Richardson

18 N.C. App. 446 | N.C. Ct. App. | 1973

BRITT, Judge.

Appellants assign as errors the court’s allowing a police officer to testify over objection that his investigation revealed that the fire truck ran through a red light, and the court’s recapitulation of that evidence in its charge to the jury. The assignments of error are sustained.

The officer in question was presented as a witness by plaintiff. The record pertaining to his cross-examination reveals:

“Q. As a result of your conversation or your investigation, did your investigation reveal that the fire truck had run through the red light?

Objection. Overruled. Exception.

Exception No. 11.

A. Yes, sir. At this time it did.”

The record further reveals that the court in its jury charge in recapitulating the evidence of Officer Brown stated “and on cross-examination he said on the report he stated that the fire truck had run a red light.”

While appellants do not cite, and our research does not disclose, authorities that are directly in point with the instant case, we think proper analogy can be drawn from numerous opinions of our State Supreme Court.

In Jones v. Bailey, 246 N.C. 599, 99 S.E. 2d 768 (1957), a case involving a collision between two automobiles at a street intersection, testimony of a witness to a declaration made by an officer in a conversation with defendant at the hospital some time after the accident to the effect that the officer said defendant did not have the right of way at the intersection was held to be incompetent, entitling defendant to a new trial. The court declared that the evidence was inadmissible on two grounds: “In the first place, it was hearsay evidence to the extent that its value or truthfulness depended in part upon the veracity and competency of some other person. * * * In the second place, the purported statement of the officer was inadmissible because it was a declaration of an opinion or conclusion which he would not have been permitted to state as a witness. (Citation.) We think this evidence clearly invaded the province of the jury.”

In McGinnis v. Robinson, 258 N.C. 264, 128 S.E. 2d 608 (1962), the court declared inadmissible in evidence the opinion of an officer as to which occupant of the vehicle was driving at the time of the accident, the opinion being based upon the officer’s investigation following the accident.

In several cases the Supreme Court has held that while it is competent for an investigating officer to testify as to the condition and position of the vehicles and other physical facts observed by him at the scene of an accident, his testimony as to his conclusions from these facts is incompetent. See Farrow v. Baugham, 266 N.C. 739, 147 S.E. 2d 167 (1966); Shorn v. Sylvester, 253 N.C. 176, 116 S.E. 2d 351 (1960) ; 1 Strong, N. C. Index 2d, Automobiles, § 46, pp. 469-472.

We find unconvincing appellee’s argument that even if the testimony was incompetent, it was not prejudicial. Evidence as to who had the green light at the intersection was in sharp conflict. In all probability the most crucial question for the jury in determining who was at fault was a determination as to who had the green light and it is conceded generally that the testimony of a police officer has considerable weight. By stating that his investigation revealed that the fire truck ran through the red light, the officer stated an opinion or conclusion which invaded the province of the jury.

We deem it unnecessary to discuss the other assignments of error brought forward in appellants’ brief as the points raised may not occur upon a retrial of this action.

For the reasons stated, appellants are awarded a

New trial.

Judges Morris and Parker concur.