10 N.C. App. 688 | N.C. Ct. App. | 1971
Defendant assigns as error that the trial judge refused to allow the following testimony of defendant’s expert witness:
“Q. Did you, at the time of this inspection, also inspect the vicinity of the blasting that took place ?
“A. Yes, sir.
“Q. Approximately how far is this from the house?
“A. It was about 1100 feet.
“Q. Are there other residences located between the location of the blasting and the residence of Mr. and Mrs. McLamb ?
“A. Yes, sir. There is a woods and several residences between Mr. and Mrs. McLamb’s residence and the site of the blasting.
“Q. Did you inspect any of these other residences?
“A. Only from the outside; just looked at them.
“Q. Were there any visible signs of damage on the exterior of these houses?
“A. No, sir.”
The testimony of the witness was by way of deposition and the trial judge had before him the later cross-examination of the witness wherein he testified that he was not present when the blasting was done. Therefore, the trial judge excluded the testimony quoted above upon the ground that it was hearsay. Conceding, without deciding, that it was error to exclude the testimony, we see no prejudice to defendant. The most that defendant could have hoped to establish by the excluded testimony was that the blasting was 100 feet further away from plaintiffs’
Defendant assigns as error the admission of certain testimony of plaintiffs’ witnesses. Two of plaintiffs’ witnesses were allowed to describe the damage plaintiff had pointed out to them as having been caused by the blasting. Their testimony served to corroborate plaintiff’s testimony, and was admissible for that purpose. Defendant also complains that one of plaintiffs’ witnesses was allowed to testify that he had not observed the cracks in the ceiling in plaintiffs’ house before the blasting. This testimony was competent as tending to corroborate plaintiffs’ testimony that the cracks did not exist before the blasting.
Defendant assigns as error that one of plaintiffs’ witnesses was allowed to testify as to damage he observed to plaintiffs’ house about sixteen months after the blasting; it is defendant’s contention that the witness’ observations are too remote in time from the date of the blasting. Defendant’s objection at trial was as follows: “Objection to his testimony. It is some year and a half or almost two years later, if your Honor please.” This objection was overruled and the witness was allowed to describe the damage observed and give his opinion as to the cause. The mere fact that the inspection by the witness was over a year after the date of the blasting does not alone render the testimony incompetent. Defendant’s objection was properly overruled.
Defendant assigns as error that a neighbor of plaintiffs was allowed to testify that he found a crack in his own windowsill about a week after the blasting. Conceding, without deciding, that this testimony was incompetent, its probative value is so scanty that we fail to see how its inclusion or exclusion would alter the results of the trial. Mere technical error does not justify a new trial.
Defendant assigns as error that plaintiffs’ witness was allowed to give his opinion of the fair market value of plaintiffs’ residence before and after the damages. It is defendant’s conten
Defendant assigns as error that the trial judge did not recapitulate all of the evidence, and that this amounted to an expression of opinion. We have carefully read the entire charge of the court to the jury, and we find no unfairness to defendant. The trial court is not required to recapitulate all of the evidence, but only so much as is necessary to explain the application of the law. G.S. 1A-1, Rule 51 (a).
The remainder of defendant’s assignments of error have been carefully considered and we have determined them to be without merit.
No error.