                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 7, 2003 Session

           LINDA BRADLEY, ET AL. v. JOHN A. WADERKER, ET AL.

                    Appeal from the Circuit Court for Montgomery County
                            No. C12-293 Ross H. Hicks, Judge



                    No. M2002-02017-COA-R3-CV - Filed August 13, 2003


A driver and the passengers in his 1993 Ford Explorer appeal a non-jury judgment of the Circuit
Court of Montgomery County. The Ford Explorer collided with a police cruiser at an intersection
in the City of Clarksville. The trial court held both drivers to be equally at fault and dismissed the
case. We affirm the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J., and
PATRICIA J. COTTRELL, J., joined.

Timothy K. Barnes, Clarksville, Tennessee, for the appellants, Linda Bradley, Stephen M. Deep, and
Tamara Deep.

W. Timothy Harvey, Clarksville, Tennessee, for the appellees, John A. Waderker and The City of
Clarksville Police Department.

                                             OPINION

        On August 24, 1996, police officer John A. Waderker was driving his patrol vehicle in a
northerly direction on Riverside Drive in Clarksville approaching the intersection of Riverside Drive
and North Second Street. At the same time, Stephen M. Deep (Plaintiff/Appellant) was driving his
1993 Ford Explorer in an easterly direction on North Second Street approaching the same
intersection. Passengers in his car were his wife, Tamara Deep, their minor child, Katelyn Deep, and
Linda Bradley, the mother of Tamara Deep. These passengers also joined Mr. Deep as Plaintiffs and
Appellants in this matter. The extension of Riverside Drive to the north of its intersection with
North Second Street was named Kraft Street. The Mid-Town Motel fronted the west side of Kraft
Street to the north of the intersection. Officer Waderker was responding to an emergency call at this
motel. The intersection is controlled by a traffic light. The 1993 Ford Explorer was in the
intersection traveling in an easterly direction when the patrol car, traveling northward on Riverside
Drive, struck the Explorer near the right rear of the Explorer causing the Explorer to flip completely
over and ultimately come to rest upright on a portion of the McDonald’s parking lot to the immediate
southeast of the intersection. The patrol car continued on through the intersection and came to rest
in Shoney’s parking lot to the immediate northeast of the intersection.

        Critical disputed questions of fact to be resolved at trial included:
1.      At what speed was the patrol car traveling?
2.      Were the audio and visual signals on the patrol car operating as the car entered the
intersection?
3.      Was the traffic control light red or green?
4.      Did the drivers of either or both vehicles act with ordinary care under the conditions existing?

       The case was heard by the trial judge on May 10, 2002, and, on July 15, 2002, a
Memorandum Opinion was rendered disposing of all issues. This Memorandum of the trial court
provided:

                 This cause was heard by the Court, sitting without a jury, on May 10, 2002.
        After hearing all the proof and arguments of counsel, the matter was taken under
        advisement. After consideration of all the proof, arguments of counsel and review
        of the statutory and case law cited by counsel, the court makes the following finding
        and rulings.
                 The proof shows and the court finds that on or about August 24, 1996, at
        around 7:00 a.m., the plaintiff, Steven M. Deep, was driving a 1991 Ford Explorer
        vehicle in an easterly direction on Providence Boulevard1 in the City of Clarksville,
        approaching the intersection of Providence Boulevard with Riverside Drive.
        Traveling with Mr. Deep as passengers in his vehicle were his wife, Tamara, his
        daughter, Katelyn and Linda Tyler (now Bradley). At the same time, John A.
        Waderker, a Clarksville policer [sic] officer was traveling in his police cruiser in a
        northerly direction on Riverside Drive approaching the aforementioned intersection,
        responding to an emergency call. Officer Waderker’s vehicle struck the Deep
        vehicle, causing it to flip onto its side, totaling the Deep vehicle and causing various
        injuries to the occupants of the Deep vehicle.
                 The plaintiffs filed suit against the City and Officer Waderker seeking
        damages for injury to person and property. The City filed a counter-complaint for
        property damage to the policy [sic] cruiser. The plaintiffs’ suit against Officer
        Waderker was previously dismissed.
                 There were significant conflicts in the testimony of the parties and witnesses
        regarding whether the police cruiser was operating its emergency lights and siren and
        which vehicle was entering the intersection on a green light. Mr. Deep insists he had
        a green light and his wife, Tamara, supports that contention as does the testimony of
        a witness, Ms. Baete [sic] Stalmaker [sic]. Ms. Tyler (Bradley) also contends the


       1
           Providence B oulevard and N orth Second Street are different names for the same street.

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light “turned green as we approached the intersection.” Officer Waderker, on the
other hand, insists he had the green light but admits that the light might have turned
yellow just as he approached the intersection.
        Neither Mr. Deep nor his wife heard any sirens or saw any emergency lights.
In fact, neither of them ever saw the police cruiser before impact. Ms. Tyler
(Bradley) who was riding in the rear of the Deep vehicle heard a siren just as the
vehicles collided. Officer Waderker maintains his sirens and emergency lights were
both operating and had been engaged for the entire time since he was dispatched on
the emergency call several minutes earlier. The witness, Ms. Stalmaker[sic], did not
see lights or hear a siren but another witness, Anthony Janusas, who was in the
parking lot of a business very near the intersection, saw the police cruiser on
Riverside Drive with its emergency lights on, and heard the siren blaring as well.
While he didn’t see the vehicles collide, he did hear the screeching of tires, the sound
of the impact and then turned to see the Deep vehicle in midair as it overturned. Mr.
Janusas also described seeing the police cruiser roll into the Shoney’s parking lot
opposite the intersection after the collision.
        All the witnesses agree that there was a significant impact between the
vehicles. The police cruiser “T-boned” the Deep vehicle. The impact was so severe
it caused the Deep vehicle to flip into the air before landing on its side. Even so, the
police vehicle traveled on through the intersection before coming to a stop. Mr. Deep
estimated his speed at 30-35 miles per hour and Officer Wederker [sic] estimated his
speed at 20 miles per hour at impact.
        T.C.A. § 55-8-108 provides in pertinent part that:

       Emergency vehicles (b)(1) A driver of an authorized emergency
       vehicle operating such vehicle in accordance with the provisions of
       subsection (a) may:

        (B) Proceed past a red or stop signal or stop sign, but only after
        slowing down as may be necessary for safe operation;

        (C) Exceed the speed limits so long as life or property is not thereby
        endangered;

        (2) The provisions of subdivision (b)(1) shall not relieve the driver
        of an authorized emergency vehicle from the duty to drive with due
        regard for the safety of all persons ...

        T.C.A. § 55-8-132 provides in pertinent part:

       (a) Upon the immediate approach of an authorized emergency
       vehicle . . .



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                  (1) The driver of every other vehicle shall yield the right-of-way ...

                  (b) This section shall not operate to relieve the driver of an
                  authorized emergency vehicle from the duty to drive with due regard
                  for the safety of all persons using the highway.

                Based on all the proof in this case, the court finds by a preponderance of the
       evidence that Mr. Deep was approaching the intersection at a speed of 30-35 miles
       per hour and that he had a green light, and thus the apparent right-of-way at the time
       his vehicle entered the intersection. However, Mr. Deep also testified that he was
       looking ahead and that he “doesn’t remember looking to his left or right” as he
       approached or entered the intersection. The evidence supports Officer Wedeker’s
       [sic] contention that the police cruiser’s emergency lights and sirens were operating
       as he approached or entered the intersection. But the evidence also indicates that
       Officer Wedeker [sic] was doing so at a speed well in excess of the 20 miles per hour
       he testified to. He was not driving with due regard for the safety of others nor did he
       slow down to enter the intersection in a manner as would be necessary for safe
       operation of his vehicle.
                Mr. Deep relies on the green light. The City relies on the emergency lights
       and siren. Regardless of the color of the traffic light or the use of emergency lights
       or sirens, both drivers had a duty to each other which they failed to perform. “A
       green or go signal is not a command to go, but a qualified permission to proceed
       lawfully and carefully in the direction indicated. The driver with a favorable traffic
       signal does not enjoy an absolute right of way and may not arbitrarily exercise his
       right of way, and despite his superior position he must exercise appropriate care with
       respect to such matters as speed, lookout, and control . . . The presence of signals at
       a crossing does not relieve a driver from the duty to keep a proper lookout when
       entering and crossing the intersection, and in this respect he must be held to have
       seen what looking would reveal . . .”
                Mr. Deep’s admission that he did not look to his left or right is fatal. By not
       doing so, he never saw the approaching police vehicle when it was clearly there to
       be seen. On the other hand, Officer Waderker, had he been as careful as the law
       requires, would have also been able to avoid the accident. Both drivers are equally
       at fault and both the original action and the counter action should be dismissed.
       Court costs are to be divided equally and no discretionary costs will be awarded.

Plaintiffs timely appealed the action of the trial court, and Defendants took issue on appeal with the
refusal of the trial court to award the City of Clarksville judgment for damages to the police vehicle.

       Appellant asserts the issues to be:

       Issue I:          Did the Trial Court err in finding both drivers equally at fault?



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                       A)     Was Officer Waderker operating his police cruiser’s audible
                              and visual signals when entering the intersection where the
                              collision occurred?

                       B)      Did the Plaintiff enter the intersection while their traffic light
                               was green?

                       C)      Did the Court err in not attributing more than 50% of the
                               proximate cause of the accident to the driver of the police
                               vehicle, John A. Waderker, due to the manner in which he
                               entered the intersection?

                       D)      Did the Court err in finding that Stephen M. Deep’s failure to
                               look left or right while entering the intersection made him
                               equally responsible for the collision?

       Issue II.       Did the Trial Court err in allowing statements of the radio dispatcher
                       to be testified to by the police officer over the hearsay objection of
                       Plaintiffs’ counsel?

        Taking these issues in reverse order, prior to the accident, Officer Waderker received a call
from the dispatcher at the police department advising him that an individual was having trouble
breathing and experiencing chest pain at the Mid-Town Motel located on Kraft Street, north of North
Second Street. He was advised that the medical unit had arrived but would not enter the room until
police personnel arrived to make sure it was clear and safe. Plaintiff objected to this testimony on
hearsay grounds, which objection was overruled by the trial court.

       This evidence is not hearsay.

               Hearsay evidence is defined as “testimony in court or written evidence, of a
       statement being offered as an assertion to show the truth of matters asserted therein,
       and thus resting for its value on the credibility of the out-of-court asserter.” See D.
       Paine, Tennessee Law of Evidence § 47 (1974) at 47, quoting McCormick on
       Evidence § 246 (2nd ed. 1972) at 584. This definition has been adopted in
       Tennessee. See State v. Mathis, 702 S.W.2d 179, 181 (Tenn.Crim.App.1985); State
       v. Hailey, 658 S.W.2d 547, 552 (Tenn.Crim.App.1983).

               The hearsay evidence rule does not operate to exclude every statement made
       to a witness by a third person. Richter v. State, 1 Tenn.Crim.App. 270, 277, 438
       S.W.2d 362, 365 (1968); State v. Hailey, supra. Where, as here, the statement is
       admitted into evidence merely to show the officer’s reason for going to the car lot,
       the statement is admissible, because the testimony is not being offered to prove the
       truth of the matters asserted by the out-of-court declarant, and is clearly not hearsay.


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        State v. John Polk and Diane Jones, C.C.A. at Jackson, opinion filed February 14,
        1980; State v. Clemmie Lee Rhyan, C.C.A. at Jackson, opinion filed July 9, 1981.

State v. Miller, 737 S.W.2d 556, 558-59 (Tenn.Cr.App.1987).

       The hearsay objection was properly overruled as the truth of what may or may not have been
happening at the Mid-Town Motel is immaterial. The evidence merely showed the reason for
Officer Waderker making an emergency run to the Mid-Town Motel.

         The rest of the case involves, entirely, the credibility of witnesses. Stephen Deep and the
passengers in the Ford Explorer testified that they did not see blue lights or hear any sirens prior to
the accident. Bette Stalnaker testified that she did not hear a siren or see blue lights on the patrol
vehicle prior to the accident. On the other hand, Officer Waderker and another witness, Deputy
Anthony Janusus, testified that the blue lights were flashing and the siren was sounding as the patrol
vehicle entered the intersection. In the same manner, a factual dispute developed as to which vehicle
had the ordinary right-of-way designated by the traffic light. On this conflicting testimony, the trial
court held that the police cruiser entered the intersection with its audible and visual signals activated
and that Plaintiff entered the intersection with a favorable green light. The trial court, assessing the
credibility of all the witnesses, held that the accident was caused by the failure of Mr. Deep to look
to his left or right prior to entering the intersection, causing him to fail to see what was clearly to be
seen. The trial court, likewise, held that Officer Waderker had a duty to enter the intersection with
due care and that he had failed to do so. The trial court, thereupon, attributed fault equally to the
parties.

        Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess
their demeanor, which ability best situates trial judges to evaluate witness credibility. State v. Pruett,
788 S.W.2d 559, 561 (Tenn.1990). Trial courts are in the most favorable position to resolve factual
disputes depending on credibility determinations. Mitchell v. Archibald, 971 S.W.2d 25, 29
(Tenn.Ct.App.1998). Accordingly, appellate courts will not re-evaluate a trial judge’s assessment
of witness credibility absent clear and convincing evidence to the contrary. Humphrey v. David
Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn.1987).

        None of the factors such as driving under the influence of intoxicants or seeing the oncoming
vehicle and, in spite of such, deciding to go on anyway, appear from the evidence in this case. Such
factors appeared in Griggs v. Mixon, No. 02A01-9504-CV-00087, 1996 WL 444104 (Tenn.Ct.App.
Aug.6,1996) and might have motivated this Court to change the percentages as found by the trial
judge. Such reallocation of percentages is only possible upon an affirmative finding by the appellate
court that the findings of the trial court are clearly erroneous. See Wright v. City of Knoxville, 898
S.W.2d 177 (Tenn.1995). In this case, the findings of the trial court are not clearly erroneous.

       We have also considered the issue raised by Defendant regarding damages to the police
vehicle belonging to the City of Clarksville and find it to be without merit.



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       The judgment of the trial court is in all respects affirmed, and the costs of the cause are
assessed to Appellants.




                                                     ____________________________________
                                                     WILLIAM B. CAIN, JUDGE




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