                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE              FILED
                                                                                    March 31, 2000

                                                                                  Cecil Crowson, Jr.
                                                                                 Appellate Court Clerk


WILLIAM A. HARVEY,                                )           LOUDON CIRCUIT
                                                  )
       Plaintiff/Appellee,                        )           Appeal No.
                                                  )           E1999-00601-COA-R3-CV
v.                                                )
                                                  )           HON. RUSSELL SIMMONS, JR.,
LENOIR CITY UTILITIES BOARD,                      )           JUDGE
                                                  )
       Defendant/Appellant                        )           AFFIRMED


Billy J. Stokes, Knoxville, Tennessee, Attorney for Defendant/Appellant.
Larry C. Vaughn, Knoxville, Tennessee, Attorney for Plaintiff/Appellee




                                          OPINION

                                                              INMAN, Sr. J.

                                                  I

       The pedestrian plaintiff was struck by a service truck owned by the defendant and operated

by its employee in the course of his duties.1 The trial judge allocated 45% of fault to the plaintiff.

The defendant appeals, insisting that the preponderance of the evidence requires a finding that the

“plaintiff was more than 51% at fault”2 which, in turn, requires the dismissal of the complaint. The



       1
       The Governmental Tort Liability Act, T.C.A. § 79-20-101 et seg., controls. The case
was heard without a jury, and the judgment was rendered in accordance with the doctrine of
comparative negligence, and within the ambit of the statute.
       2
        McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992) provides that a plaintiff cannot
recover if his negligence is 50% or more of the total negligence.
issue for resolution is whether the trial court erred in the allocation of fault.


                                                   II

        Our review is de novo on the record accompanied with a presumption that the judgment is

correct unless the evidence preponderates against it. Rule 13(d) T.R.A.P. The presumption of

correctness doctrine requires an appellate court to defer to a trial court’s findings of fact. Taylor v.

Trans Aero Corp., 924 S.W.2d 109, (Tenn. Ct. App. 1995); Weaver v. Nelms, 750 S.W.2d 158

(Tenn. Ct. App. 1987); Realty Shop Inc. v. RR Westminister Holding, 7 S.W.3rd 581, (Tenn. Ct.

App. 1999). Factual findings that rest on credibility are entitled to great weight. Estate of Walton,

950 S.W.2d 956 (Tenn. 1997). Superimposed upon these familiar principles is the definitive

abjuration to accord trial judges considerable latitude in the allocation of fault between or among

culpable parties. Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995).


                                                  III

        The plaintiff was 68 years old at the time of the accident. He drove onto Triangle Street in

Lenoir City, found a proper parking space, and alighted from his truck intending to cross Triangle

Street en route to a barber shop nearby. He was “walking briskly” on account of a light rain; he

looked to his right, and thence to his left as he approached the margin of Triangle Street. He did not

again look to his right, and thus did not see the approaching truck driven by an employee of the

defendant. The plaintiff was in the middle of the street when he was struck.

        The plaintiff testified that his vision was unobstructed to his right, for about 76 feet, and that

there were no vehicles approaching from either direction when he prepared to cross the street. After

taking four or five steps, he saw, out of the corner of his eyes, the defendant’s truck, whose driver
testified that he was traveling about 15 miles per hour when he saw the plaintiff running from his

left, applied his brakes, but could not stop in time to avoid the accident.

        The trial judge made findings of fact: (1) that the defendant’s driver was traveling at a speed

of 20 mph, which was too fast under the circumstances; (2) that he drove in the middle of the street

rather than in his proper lane3; (3) that both parties were proximately negligent; (4) that fault should

be allocated 45% to the plaintiff, and 55% to the defendant’s driver.


                                                   IV

        Each party employed an accident reconstruction expert, both of whom testified by deposition.

The defendant’s expert opined that the speed of the truck was between 15 and 21 mph when brakes

were applied; the trial judge apparently did not treat the expert testimony as materially beneficial

except with respect to the speed of the truck. We also take note of the fact that the trial judge made

no specific finding as to the credibility of the plaintiff and the defendant’s driver. As in most

contested lawsuits, the credibility of witnesses who testify in open court is crucial to a resolution of

factual disputes, and the trial court’s determination or credibility is well-nigh conclusive on appeal,

for familiar reasons. See, Town of Alamo v. Forcum James Company, 327 S.W.2d 47 (Tenn. 1959).

We think the issue of credibility was necessarily resolved by the trial judge favorably to the plaintiff.4


                                                   V

        The latitude accorded to trial courts in the allocation of fault necessarily controls our review



        3
            Thus inferring that the accident would probably not have occurred.
        4
         A specific issue presented by the appellant is that the trial court erred in refusing to
sustain the motion to dismiss made at the close of the plaintiff’s proof. We think that reliance on
the motion was waived by the introduction of proof and we do not notice it further.
of this case. We are unable to find that the evidence preponderates against the allocation and the

judgment is therefore affirmed at the costs of the appellant. The case is remanded for all appropriate

purposes.



                                                      ________________________________
                                                      William H. Inman, Senior Judge.


CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge
