City of Winston-Salem v. Sutcliffe

Court of Appeals of North Carolina

City of Winston-Salem v. Sutcliffe

202 S.E.2d 805, 20 N.C. App. 748, 1974 N.C. App. LEXIS 2544

CourtCourt of Appeals of North Carolina

DecidedFebruary 20, 1974

DocketNo. 7421SC35

StatusPublished

This text of 202 S.E.2d 805 (City of Winston-Salem v. Sutcliffe) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Winston-Salem v. Sutcliffe, 202 S.E.2d 805, 20 N.C. App. 748, 1974 N.C. App. LEXIS 2544 (N.C. Ct. App. 1974).

Pincite

Opinion

CAMPBELL, Judge.

The plaintiff assigns as error the failure of the trial court to grant the plaintiff’s motion to strike the testimony of the defendants’ expert, Mr. L. C. McClenny. Mr. McClenny based his testimony as to the value of the property before and after the taking apparently on the erroneous assumptions that the City was taking a 60-foot easement, and that the interest taken was [749]*749one 60-foot wide permanent easement rather than a 20-foot wide permanent easement plus a 20-foot wide construction easement. Mr. McClenny testified that the difference in the value of the property before and after the taking was $4,723.00. The jury found that the difference in value was $4,720.00. The plaintiff’s expert testified that the difference in value was $625.00. The plaintiff was clearly prejudiced by the testimony of Mr. Mc-Clenny, and the testimony should have been stricken. Highway Commission v. Matthis, 2 N.C. App. 233, 163 S.E. 2d 35 (1968); Elsevier v. Machine Shop, 9. N.C. App. 539, 176 S.E. 2d 875 (1970); Morrison v. Walker, 179 N.C. 587, 103 S.E. 139 (1920); and Robbins v. Trading Post, Inc., 251 N.C. 663, 111 S.E. 2d 884 (1960). Furthermore, the trial judge did nothing to correct the erroneous assumption in his instructions to the jury. We therefore grant a new trial.

We do not deem it necessary to consider the plaintiff’s other assignments of error as they may not occur on retrial.

New trial.

Judges Hedrick and Baley concur.

Free access — add to your briefcase to read the full text and ask questions with AI

CAMPBELL, Judge.

The plaintiff assigns as error the failure of the trial court to grant the plaintiff’s motion to strike the testimony of the defendants’ expert, Mr. L. C. McClenny. Mr. McClenny based his testimony as to the value of the property before and after the taking apparently on the erroneous assumptions that the City was taking a 60-foot easement, and that the interest taken was [749]*749one 60-foot wide permanent easement rather than a 20-foot wide permanent easement plus a 20-foot wide construction easement. Mr. McClenny testified that the difference in the value of the property before and after the taking was $4,723.00. The jury found that the difference in value was $4,720.00. The plaintiff’s expert testified that the difference in value was $625.00. The plaintiff was clearly prejudiced by the testimony of Mr. Mc-Clenny, and the testimony should have been stricken. Highway Commission v. Matthis, 2 N.C. App. 233, 163 S.E. 2d 35 (1968); Elsevier v. Machine Shop, 9. N.C. App. 539, 176 S.E. 2d 875 (1970); Morrison v. Walker, 179 N.C. 587, 103 S.E. 139 (1920); and Robbins v. Trading Post, Inc., 251 N.C. 663, 111 S.E. 2d 884 (1960). Furthermore, the trial judge did nothing to correct the erroneous assumption in his instructions to the jury. We therefore grant a new trial.

We do not deem it necessary to consider the plaintiff’s other assignments of error as they may not occur on retrial.

New trial.

Judges Hedrick and Baley concur.

Cite This Page — Counsel Stack

Bluebook (online)

202 S.E.2d 805, 20 N.C. App. 748, 1974 N.C. App. LEXIS 2544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-winston-salem-v-sutcliffe-ncctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack