                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              April 18, 2002 Session

                           CONNIE J. OTIS v. LILY M. FRYE

                   Direct Appeal from the Circuit Court for Loudon County
                    No. 6512    Hon. Russell Simmons, Jr., Circuit Judge

                                        FILED MAY 28, 2002

                                  No. E2001-02848-COA-R3-CV



Plaintiff claimed damages from defendant’s motor vehicle sliding into plaintiff’s vehicle. The jury
returned a verdict for defendant. On appeal, we affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Van R. Michael, Sweetwater, Tennessee, for Appellant.

Janet L. Hogan, Knoxville, Tennessee, for Appellee.



                                              OPINION


                This action arises from a motor vehicle accident, wherein plaintiff sued the defendant
for personal injuries allegedly sustained when defendant’s vehicle slid out of control and struck
plaintiff’s vehicle.

               Following a trial, the jury returned a verdict for the defendant, and after the Trial
Court entered Judgment, plaintiff has appealed.

                Plaintiff testified that on June 2, 1999, she left her home and was on the way to the
bank, when she saw defendant coming around a corner “sideways”. She testified that defendant’s
car hit her vehicle and that it spun her car and she ended up against a rail in the ditch on the opposite
side of the road. Plaintiff stated the road was wet, but not “soaked.”
                 Defendant testified that she was on her way home from work, and was going around
a curve when she lost control of her car on the wet pavement, and that she did not see plaintiff’s
vehicle until the collision. She stated that she slid across the road on the wet pavement, and that the
slide was the cause of the accident. Defendant testified that she had driven the same route earlier
that day when it was raining and did not slide, but it was not raining when she was on her way back
home. She testified her tires and brakes were in good condition and the road was still wet as it had
been earlier, and she could not detect any extraordinary changes to the character of the road. She
concluded by stating that she simply started to slide and before she could regain control, she hit
plaintiff’s car.

              On appeal, plaintiff alleged the jury verdict was contrary to the weight of the
evidence. However, a jury verdict may only be set aside if there is no material evidence to support
it. Tenn. R. App. P. 13(d). As this Court has explained:

               Appellate courts do not re-weigh the evidence when a party challenges the
               evidentiary support for a verdict. We take the strongest legitimate view of the
               evidence favoring the prevailing party, discard all contrary evidence, and allow all
               reasonable inferences to uphold the jury's verdict, and will only set aside a jury's
               verdict when there is no material evidence to support it.

Smith County v. Eatherly, 820 S.W.2d 366, 369 (Tenn. Ct. App. 1991).

               As to the issue involved in this case, this Court has previously expounded:

               It is well-settled that a driver must keep his automobile under reasonable control
               when driving on wet and slippery streets, and if he operates it so that it is out of his
               control he is guilty of negligence and is liable for all injuries and damage proximately
               resulting therefrom.

               It is equally well-settled that if, prior to losing control, the driver operates his vehicle
               in a manner commensurate with the traffic and road conditions existing and loses
               control due to the condition of the road, he is not guilty of negligence.

               As stated in Shepherd v. Ball, 47 Tenn. App. 189, 337 S.W.2d 243, 244.

               “In the absence of antecedent negligence or negligence in the operation of the car
               after it has skidded, liability of the . . . driver . . . can not be predicated solely on
               skidding on a wet or slippery road.”

Davis v. Sparkman, 396 S.W.2d 91, 93 (Tenn. Ct. App. 1964)(citations omitted).
                The evidence in this case establishes that defendant was driving on a wet road and
lost control of her car while going around a curve, which caused her to strike plaintiff’s vehicle.
Defendant explained that she drove this road frequently, and had never had any problems before.


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Further, she was not driving any differently than she ever did, and simply went into a slide due to
the wet road. Defendant testified she was trying to regain control of her car when she made contact
with plaintiff’s car. There was no proof that defendant was driving negligently.

                “The appellate courts do not determine the credibility of witnesses or weigh evidence
on appeal from a jury verdict. Appellate courts are limited to determining whether there is material
evidence to support the jury's verdict. Where the record contains material evidence supporting the
verdict, the judgment based on that verdict will not be disturbed on appeal.” Reynolds v. Ozark
Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994). Even if the evidence is conflicting, this Court
is not to determine where the truth lies, but only to determine whether there is material evidence to
support the verdict. Mason v. Tennessee Farmers Mut. Ins. Co., 640 S.W.2d 561 (Tenn. Ct. App.
1982).1

               Finally, plaintiff asks this Court to determine whether the “wet street doctrine” applies
in a case involving res ipsa loquitur. Plaintiff did not, however, raise this issue in her Motion for
New Trial, and it may not be raised for the first time on appeal. See Tenn. R. App. P. 3(e); Mallard
v. Tompkins, 44 S.W.3d 73 (Tenn. Ct. App. 2000).

               Since there is material evidence to support the jury’s verdict, we affirm the Judgment
of the Trial Court and remand, with the cost of the appeal assessed to Connie J. Otis.




                                                 _________________________
                                                 HERSCHEL PICKENS FRANKS, J.




       1
           The nature and extent of plaintiff’s injuries, if any, is based on conflicting evidence.


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