                  IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT JACKSON


TERRY T. JOHNSON,                    )
                                     )
            Plaintiff/Appellant,     ) Shelby Circuit No. 39380 T.D.
                                     )
VS.                                  ) Appeal No. 02A01-9502-CV-00029
                                     )
MICHAEL H. MCCOMMON and
MLG&W,
                                     )
                                     )
                                     )
                                                                   FILED
            Defendants/Appellees.    )
                                                                     May 9, 1996

                                                       Cecil Crowson, Jr.
           APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                                                       Appellate C ourt Clerk
                       AT MEMPHIS, TENNESSEE
               THE HONORABLE WYETH CHANDLER, JUDGE




A. WILSON WAGES
ALICE L. GALLAHER
A. WAGES LAW FIRM
Memphis, Tennessee
Attorney for Appellant


JOSEPH G. LITTLE
Memphis, Tennessee
Attorney for Appellee, MLG&W




AFFIRMED




                                                        ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.

      This action was brought against Michael McCommon and Memphis Light, Gas, and
Water (MLG&W) for personal injuries sustained when McCommon, an employee of

MLG&W, struck plaintiff with his vehicle. McCommon was dismissed from the suit prior to

trial. Following a bench trial, the lower court held that plaintiff's negligence was greater than

that of the defendant and that plaintiff proximately caused her own injuries. Because we

do not find that the evidence preponderates against the trial court's determination, we

affirm the judgment dismissing plaintiff's case.



       On October 12, 1990, Terry Johnson ("plaintiff") was driving a friend's car on

Interstate 240 in Memphis. The car stalled in the center lane of the interstate and plaintiff

was unable to restart the vehicle. Plaintiff proceeded to get out of the vehicle in order to

warn approaching motorists of the obstruction. Plaintiff testified that defendant's vehicle

struck her as she emerged from the car with her back facing oncoming traffic. In contrast,

McCommon testified that when plaintiff got out of the car, she began running across the

left lane toward the median. McCommon testified that he reduced his speed as soon as

he saw plaintiff and that he swerved into the median to avoid hitting her. Defendant's

testimony was corroborated by an eye-witness, Mr. Elton Harris, who testified by deposition

that after plaintiff got out of the car, she took "running steps" across the left lane of

oncoming traffic. Harris testified that he saw McCommon brake and serve into the median

in an attempt to avoid striking plaintiff. Plaintiff suffered substantial physical injury as a

result of the incident.



       Following a bench trial, the judge held that the plaintiff's own negligence in running

into oncoming traffic was the proximate cause of her own injuries and that plaintiff was

more than 50% responsible for her own injuries. Accordingly, judgment was entered in

favor of defendant.



       Plaintiff has raised two issues on appeal, which are: (1) whether the trial court erred

in admitting the deposition testimony of Elton Harris; and (2) whether the trial court erred

in finding that Plaintiff proximately caused her own injuries and was more than 50%

responsible for her own injuries.



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       The plaintiff's first contention is that the trial court erred in admitting the deposition

testimony of Elton Harris into evidence. Plaintiff argues that the deposition should not have

been admitted because defendant failed to issue a subpoena for Harris.



       Prior to trial, defendant filed an affidavit with the trial court stating that Harris resided

in Mississippi and that defendant would be unable to procure Harris' presence by

subpoena because there was no known Tennessee address to which defendant could

issue a subpoena. The trial court agreed to admit the deposition on the condition that the

parties attempt to locate the witness and report the results of such attempt to the court.

The parties confirmed to the court that Harris still resided out of state. Plaintiff argues that

defendant's failure to subpoena Harris was error for two reasons. First, plaintiff asserts

that Harris did not reside at a distance greater than 100 miles from the place of trial, and

thus, defendant failed to comply with Tenn. R. Civ. P. 32.01(3). Next, plaintiff argues that

defendant should have complied with the subpoena requirement because Harris stated in

his deposition that he was willing to come to trial to testify.



       Tenn. R. Civ. P. 32.01(3) provides in part:

                      Rule 32.01. Use of Depositions. - At the trial or upon
              the hearing of a motion or an interlocutory proceeding, any part
              or all of a deposition, so far as admissible under the Rules of
              Evidence applied as though the witness were then present and
              testifying, may be used against any party who is present or
              represented at the taking of the deposition or who had
              reasonable notice thereof, in accordance with any of the
              following provisions:
                                              ...

                      (3) The deposition of a witness, whether or not a party,
              may be used by any party for any purpose if the court finds:
              (A) That the witness is dead; or (B) that the witness is at a
              greater distance than one hundred miles from the place of trial
              or hearing or is out of the state, unless it appears that the
              absence of the witness was procured by the party offering the
              deposition; or (C) that the witness is unable to attend or testify
              because of age, illness, infirmity or imprisonment; or (D) that
              the party offering the deposition has been unable to procure
              the attendance of the witness by subpoena or the witness is
              exempt from subpoena to trial under T.C.A. § 24-9-101; or (E)
              upon application and notice, that such exceptional
              circumstances exist as to make it desirable, in the interest of
              justice and with due regard to the importance of presenting the
              testimony of witnesses orally in open court, to allow the
              deposition to be used.         Notwithstanding the foregoing


                                                3
                provisions, depositions of experts taken pursuant to the
                provision of Rule 26.02(4) may not be used at trial except to
                impeach in accordance with the provisions of Rule 32.01(1).



         The admissibility of evidence lies within the sound discretion of the trial court and

its decision will not be reversed on appeal unless there has been a demonstration of a

manifest abuse of discretion. Inman v. Aluminum Co. of America, 697 S.W. 2d 350 (Tenn.

App. 1985); Otis v. Cambridge Mutual Fire Ins. Co., 850 S.W. 2d 439 (Tenn. 1992).



         In the present case, Harris' deposition was admitted into evidence in full compliance

with Tenn. R. Civ. P. 34.02 because Harris resided out of state. Additionally, we find the

fact that Harris agreed to testify at trial to be without significance. Accordingly, we hold that

the trial court did not abuse its discretion in admitting Harris' deposition testimony and that

such testimony was properly admitted.



         Plaintiff next alleges that the trial court erred in its finding that plaintiff proximately

caused her own injuries, and that plaintiff was more than 50% negligent.



         Our standard of review on this issue is de novo upon the record, accompanied by

a presumption of correctness of the trial court's findings of fact. T.R.A.P. 13(d). This Court

must affirm the trial court's findings of fact, unless the evidence preponderates otherwise.

T.R.A.P. 13(d).



         Proximate cause is that which is the procuring, efficient, and predominate cause.

Nash v. Love, 440 S.W. 2d 593 (Tenn. App. 1968). An actor's conduct will be considered

the proximate or legal cause of injury if three requisites are met. First, the actor's conduct

must be a substantial factor in bringing about the harm. Next, there must be no legal rule

that would operate to relieve the actor from liability. Finally, the harm that occurred must

have been reasonably foreseeable. McClenahan v. Cooley, 806 S.W. 2d 767, 775 (Tenn.

1991).




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       In light of the above factors, we agree with the trial court that plaintiff's act of

emerging from her vehicle and stepping into oncoming traffic was the proximate cause of

her own injuries. Similarly, we do not find that the evidence preponderates against the trial

court's determination that plaintiff was more that 50% responsible for her own injuries. In

fact, we find very little evidence from the record that would support the conclusion that

defendant was negligent in any respect.



       The judgment of the trial court is affirmed. Costs are taxed to plaintiff.




                                                         HIGHERS, J.



CONCUR:




CRAWFORD, P.J.,W.S.




LILLARD, J.




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