Morris v. Lambeth, 203 N.C. 695 (1932)

Dec. 14, 1932 · Supreme Court of North Carolina

203 N.C. 695

S. G. MORRIS and MAGGIE MORRIS, His Wife, v. R. L. LAMBETH.

(Filed 14 December, 1932.)

Evidence K b — Admission of opinion, based on observation, as to cause of break in dam held not error in this case.

In this case the question involved was whether the defendant’s dam had been negligently constructed and maintained, and the defendant offered as a witness the foreman who had constructed the dam who testified as to its construction and that he had examined it after the break, the witness was then allowed to testify that he had an opinion satisfactory to himself as to the cause of the break and that the break was caused by some manner of explosion: Bela, the opinion evidence was competent under the rule that common observers may testify to the results of their observations made at the time in regard to common appearances, conditions, etc., which cannot be reproduced and made palpable to a jury.

Civil action, before Finley, J., at July Term, 1932, of Randolph.

Tbe plaintiffs alleged and offered evidence tending to show tbat on 28 February, 1929, tbey were owners of certain lands, and tbat on said date a dam, erected by tbe defendant on lands owned by bim and adjoining tbe lands of plaintiff, broke, flooding about forty acres of bottom land and otherwise damaging tbe property of plaintiffs. It was alleged tbat tbe dam was negligently constructed and maintained, and tbat by reason thereof the break resulted, occasioning tbe injury complained of.

Tbe defendant alleged and offered evidence tending to show tbat tbe dam was properly constructed and maintained.

Tbe issue of negligence was answered in favor of defendant, and from judgment upon tbe verdict tbe plaintiff appealed.

H. M. Robins for plaintiff.

I. C. Moser for defendant.

Per Curiam.

Tbe defendant offered the testimony of a witness who was the foreman in charge of the work of constructing the dam. He testified in detail as to the construction of the dam, and tbat on the day after the break be examined it. Thereupon be was asked if be bad an opinion, satisfactory to himself, as'to the cause of the break, and replying in the affirmative, stated tbat the break was caused by some “manner of explosion.” Tbe witness further testified as to the facts observable in and about the broken dam upon which bis opinion was based. Tbe plaintiff objected to the testimony, and assigned the admission thereof by the trial judge, for error. This testimony is within the principle approved in Britt v. R. R., 148 N. C., 37, 61 S. E., 601, as follows: “The exception to the general rule that witnesses cannot give opinions is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning, but it includes the evidence of common observers testifying the results of their observations made at the time in regard to common appearances, facts and conditions which cannot be reproduced and made palpable to a jury.” This statement of law was approved in Marshall v. Tel. Co., 181 N. C., 292, 106 S. E., 818.

The merits of the controversy involve an issue of fact, and the verdict is determinative.

Affirmed.