{
  "id": 8550662,
  "name": "LAWRENCE E. KACZALA v. GEORGE GRADY RICHARDSON v. CITY OF WILMINGTON",
  "name_abbreviation": "Kaczala v. Richardson",
  "decision_date": "1973-06-13",
  "docket_number": "No. 725SC842",
  "first_page": "446",
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    {
      "cite": "246 N.C. 599",
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  "last_updated": "2023-07-14T21:14:36.293491+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Parker concur."
    ],
    "parties": [
      "LAWRENCE E. KACZALA v. GEORGE GRADY RICHARDSON v. CITY OF WILMINGTON"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nAppellants assign as errors the court\u2019s allowing a police officer to testify over objection that his investigation revealed that the fire truck ran through a red light, and the court\u2019s recapitulation of that evidence in its charge to the jury. The assignments of error are sustained.\nThe officer in question was presented as a witness by plaintiff. The record pertaining to his cross-examination reveals:\n\u201cQ. As a result of your conversation or your investigation, did your investigation reveal that the fire truck had run through the red light?\nObjection. Overruled. Exception.\nException No. 11.\nA. Yes, sir. At this time it did.\u201d\nThe record further reveals that the court in its jury charge in recapitulating the evidence of Officer Brown stated \u201cand on cross-examination he said on the report he stated that the fire truck had run a red light.\u201d\nWhile appellants do not cite, and our research does not disclose, authorities that are directly in point with the instant case, we think proper analogy can be drawn from numerous opinions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.\nIn 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: \u201cIn 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.\u201d\nIn 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\u2019s investigation following the accident.\nIn 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, \u00a7 46, pp. 469-472.\nWe find unconvincing appellee\u2019s 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.\nWe deem it unnecessary to discuss the other assignments of error brought forward in appellants\u2019 brief as the points raised may not occur upon a retrial of this action.\nFor the reasons stated, appellants are awarded a\nNew trial.\nJudges Morris and Parker concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Smith & Spivey by Jerry L. Spivey for plaintiff appellant.",
      "Yow & Yow by Cicero P. Yow for third party defendant appellant.",
      "Carlton S. Prickett, Jr., and Marshall, Williams, Gorham & Brawley by Lonnie B. Williams for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LAWRENCE E. KACZALA v. GEORGE GRADY RICHARDSON v. CITY OF WILMINGTON\nNo. 725SC842\n(Filed 13 June 1973)\nAutomobiles \u00a7 46; Evidence \u00a7 41\u2014 testimony invading province of jury\nIn an action to recover for personal injuries sustained in a collision between a fire truck and an automobile, testimony by a police officer that his investigation revealed that the fire truck ran through a red light invaded the province of the jury and constituted prejudicial error.\nAppeal by plaintiff and third party defendant from Wells, Judge, 12 June 1972 Session of New Hanover Superior Court.\nPlaintiff instituted this action seeking to recover for personal injuries sustained by him in a collision between a fire truck and an automobile on 26 December 1970 at the intersection of North Fourth Street and Chestnut Street in the City of Wilmington.\nIn his pleadings, plaintiff alleged in pertinent part as follows: On said date he was employed as a fireman by the City of Wilmington. Around 5:25 p.m., he was operating a fire truck belonging to said city in a northerly direction on North Fourth Street. As the fire truck approached the intersection with Chestnut Street, its flashing or revolving red light was burning and its siren was emitting a loud wailing sound. As plaintiff attempted to drive the fire truck through said intersection on a green light, defendant Richardson, who was operating an automobile west on Chestnut Street, negligently drove into the intersection on a light that was red to traffic on Chestnut Street, crashed into the fire truck and caused it to overturn, resulting in serious personal injuries to' plaintiff.\nIn his answer, defendant Richardson denied any negligence on his part, alleged that he had the green light and pleaded contributory negligence on the part of plaintiff. He further pleaded a third party action against the City of Wilmington, asking for recovery for damages to his property and injury to his person.\nDefendant city filed answer to the third party action and alleged a cross action against defendant Richardson for damages to the fire truck.\nAt trial the parties presented evidence in support of their respective allegations. Eight issues covering the three claims were submitted to the jury who answered the issues of defendant Richardson\u2019s negligence and plaintiff\u2019s contributory negligence in the affirmative. From judgment allowing no recovery by any party and dismissing the actions, plaintiff and defendant city appealed.\nSmith & Spivey by Jerry L. Spivey for plaintiff appellant.\nYow & Yow by Cicero P. Yow for third party defendant appellant.\nCarlton S. Prickett, Jr., and Marshall, Williams, Gorham & Brawley by Lonnie B. Williams for defendant appellee."
  },
  "file_name": "0446-01",
  "first_page_order": 470,
  "last_page_order": 472
}