                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 11, 2005 Session

      CARL ROBERSON, ET AL. v. MOTION INDUSTRIES, INC., ET AL.

                     Appeal from the Circuit Court for Hamilton County
                         No. 02C701     W. Neil Thomas, III, Judge



                    No. E2004-02310-COA-R3-CV - FILED JULY 7, 2005



The jury returned a verdict in this car wreck lawsuit for Carl and Vicki Roberson (“Plaintiffs”) in
the amount of $900,000. However, the jury assessed 38% of the fault to Carl Roberson, thereby
reducing the total verdict to $558,000 under comparative fault principles. On appeal, Plaintiffs claim
the Trial Court erred when it denied their motion for a directed verdict made at the close of proof and
in their Rule 50.02 motion. In their motion for directed verdict, Plaintiffs argued there was no
material evidence to support defendant Motion Industries’ claim that Mr. Roberson was guilty of
comparative fault. The Trial Court denied the motion and allowed the jury to decide the comparative
fault issue. Thereafter, Plaintiffs filed a motion for new trial which the Trial Court denied after
specifically approving the amount of damages awarded by the jury as well as the jury’s allocation
of fault. Plaintiffs appeal claiming the Trial Court erred when it denied their motion for directed
verdict. We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which SHARON G. LEE, J., and
WILLIAM H. INMAN , SR. J., joined.


Richard P. Jahn, Jr., Chattanooga, Tennessee, for the Appellants Carl and Vicki Roberson.


Douglas M. Campbell, Chattanooga, Tennessee, for the Appellee Motion Industries, Inc.
                                                        OPINION

                                                      Background

                In April of 2002, Plaintiffs filed suit against Motion Industries, Inc., and Travis G.
Weathers (“Weathers”)1. According to the complaint, in June of 2001, Weathers was driving a truck
while in the course and scope of his employment with Motion Industries. Weathers apparently had
stopped at a stop sign at the intersection of Broad Street and Glenview Street in Chattanooga, but
then proceeded to pull out into traffic on Broad Street striking the automobile driven by Mr.
Roberson. Plaintiffs claim the accident caused serious injuries to Mr. Roberson’s lower back and
after conservative medical treatment failed, Mr. Roberson underwent a spinal fusion at which time
“[s]teel rods, wire cages and autogenous bone grafts were used to fuse three of his lower vertebraes.”
Plaintiffs’ claims are based on negligence and negligence per se. Mr. Roberson initially sought
compensatory damages totaling $2,000,000, and Mrs. Roberson sought $400,000 in damages for loss
of consortium. Plaintiffs later amended the complaint to increase Mr. Roberson’s ad damnum to
$3,400,000.

               Motion Industries answered the complaint and generally denied any liability to
Plaintiffs. Motion Industries asserted, among other things, that Mr. Roberson’s comparative fault
was the proximate cause of the accident and his resulting injuries.2

                Plaintiffs claim on appeal that the proof at trial showed Mr. Roberson incurred
medical expenses totaling $212,089. Mr. Roberson also offered proof that his past and future lost
wages based upon his work life expectancy of 7.11 years totaled $410,000. Mr. Roberson’s past and
future lost wages based upon a retirement age of 65 totaled $499,244. Other proof regarding Mr.
Roberson’s claimed damages included expenses for future medical care totaling $154,471, and
damages for past and future loss of “value of household services” totaling $85,053. Thus, according
to Plaintiffs, Mr. Roberson incurred actual damages for past and future lost wages, past and future
medical care, and loss of “value of household services” in the range of between approximately
$862,000 and $951,000, depending on whether Mr. Roberson quit working in 7.11 years or retired
at age 65.3


         1
             Plaintiffs voluntarily dismissed their claims against Weathers prior to trial.

         2
          There was a dispute prior to trial over whether Motion Industries properly raised comparative fault as a
defense. This dispute apparently was resolved in favor of M otion Industries and the issue of whether comparative fault
was properly pled as a defense is not at issue on appeal.

         3
           These figures were obtained from an economic consultant’s report which Plaintiffs entered as an exhibit at
trial. W e have provided these figures to show what Plaintiffs claim to be the actual damages resulting from the
automobile accident. W hether Plaintiffs proved damages consistent with the jury’s verdict is not directly at issue on
appeal. Accordingly, our mention of the figures contained in the economic consultant’s report should not be interpreted
as a conclusion that it accurately reflects Mr. Roberson’s actual damages or that the jury was in any way required to
accept the contents of the report.

                                                             -2-
                At the close of proof at trial, Plaintiffs moved for a directed verdict on the issue of
Mr. Roberson’s alleged comparative fault. The Trial Court denied the motion and the jury eventually
returned a verdict in favor of Mr. Roberson in the amount of $880,000, and in favor of Mrs.
Roberson in the amount of $20,000. The jury also found, however, that Mr. Roberson was 38% at
fault for the accident. The Trial Court then reduced Plaintiffs’ overall verdict by 38% consistent
with comparative fault principles. The end result was a verdict for Mr. Roberson totaling $545,600,
and a verdict totaling $12,400 for Mrs. Roberson.

                Following entry of judgment, Plaintiffs filed a Motion for Directed Verdict and
Additur or New Trial. The Trial Court denied this motion and “specifically approved” the amount
of damages assessed by the jury as well as the jury’s allocation of fault. Plaintiffs appeal, claiming
the Trial Court erred when it refused to direct a verdict in their favor as to Mr. Roberson’s alleged
comparative fault. Plaintiffs ask this Court to hold that the Trial Court erred in not granting their
motion for a directed verdict and by not setting aside the jury’s finding of comparative fault.
Plaintiffs ask this Court to restore the entire jury verdict of $900,000 in their favor.

                                             Discussion

               Our standard of review is whether there is any material evidence in the record to
support the Trial Court’s denial of Plaintiffs’ motion for directed verdict. See Stooksbury v.
American Nat. Prop. and Cas. Co., 126 S.W.3d 505 (Tenn. Ct. App. 2003). One of the many issues
in Stooksbury was whether the trial court erred when it failed to direct a verdict in the defendant’s
favor. In resolving this issue, we stated:

               In deciding whether a trial court was correct in granting or denying a
               motion for directed verdict, an appellate court cannot weigh the
               evidence.

                       Rather, it must take the strongest legitimate view of the
                       evidence in favor of the plaintiff, indulging in all reasonable
                       inferences in his favor, and disregarding any evidence to the
                       contrary. The trial judge's action [granting a motion for
                       directed verdict] may be sustained only if there is no material
                       evidence in the record that would support a verdict for the
                       plaintiff, under any of the theories that he has advanced.

               Wharton Transport Corp. v. Bridges, 606 S.W.2d 521, 525 (Tenn.
               1980) (quoting Cecil v. Hardin, 575 S.W.2d 268, 271 (Tenn.1978)).

                      To resolve this issue, we must determine if the Trial Court
               was correct when it overruled Defendant's motion for directed verdict,
               thereby implicitly concluding there was material evidence that would
               support a verdict for Plaintiff.


                                                 -3-
Stooksbury, 126 S.W.3d at 516. In the present case, we likewise must determine if the Trial Court
correctly overruled Plaintiffs’ motion for directed verdict, thereby implicitly finding that there was
material evidence that would support a jury verdict finding comparative fault on the part of Mr.
Roberson.4

                Although the trial lasted six days, only evidence pertaining to how the accident
occurred is relevant on appeal. Mr. Roberson testified that on the day of the accident, he was on his
way home and was driving down Broad Street in Chattanooga. Mr. Roberson explained that the
intersection of Broad Street and Glenview Street is approximately three hundred feet past a traffic
light at Broad Street and 33rd Street. Mr. Roberson testified he was proceeding west bound on Broad
Street. He had just crossed over some railroad tracks, was traveling 20 to 25 m.p.h., and was in the
process of “building my speed back up.” According to Mr. Roberson:

                          I was traveling down this point. All this traffic was around
                   me. There was a big something, big truck or big bus. I wasn’t
                   looking over at that side because there was a lot of traffic. I was just
                   looking straight ahead. I was traveling this way. Then I could see a
                   white … pickup truck. Then I kept going and then I seen in the
                   corner of my eye the white coming at me…. I hit my gas and tried to
                   get over into this center lane. The truck hit me and I knew I wasn’t
                   doing any good with the gas.

                The impact caused Mr. Roberson’s car to spin around and his car ended up in the
inside lane of northbound traffic. According to Mr. Roberson, shortly after the accident Weathers
told him that “he didn’t see me and he was sorry that he hit me.”

                  On cross-examination, Mr. Roberson acknowledged that the last traffic light he might
have stopped at was at 26th Street, about .8 of a mile from the scene of the accident. Not far past
this last traffic light, however, is the railroad track which Mr. Roberson stated he crossed at about
20 to 25 m.p.h. After crossing the railroad track, Mr. Roberson began to accelerate. Mr. Roberson
stated that the speed limit on Broad Street is 35 m.p.h. Mr. Roberson denied that he was speeding
when the accident occurred.

                Weathers testified that on the day of the accident, he was stopped at the stop sign on
Glenview Street for one or two minutes before he proceeded to pull out onto Broad Street. Weathers
stated that he could see down Broad Street to the railroad tracks which were over three hundred feet
away from Glenview Street. Weathers testified that there was a garbage truck traveling down Broad

         4
            Our analysis would be identical if we were reviewing the jury’s verdict assessing 38% comparative fault to
Mr. Roberson. Jury verdicts also are reviewed utilizing the material evidence standard. See Tenn. R. App. P. 13(d)
(“Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.”).
Plaintiffs indeed have an uphill battle given that twelve jurors believed by a preponderance of the evidence that Mr.
Roberson was 38% at fault, and the Trial Court concluded there was material evidence to support that particular finding
when Plaintiffs’ post-trial motion was denied.

                                                              -4-
Street in the outer lane approaching Glenview Street. Weathers did not see any vehicles in the lane
next to the garbage truck or any vehicles behind the garbage truck. Weathers stated that the garbage
truck then turned onto Glenview Street and, as it was turning, Weathers looked both ways and after
seeing no other vehicles approaching, proceeded to pull out onto Broad Street. Weathers stated he
was traveling about 2 m.p.h. when the collision occurred. After the accident, Weathers apologized
to Mr. Roberson and stated that he did not see Mr. Roberson’s vehicle. Although Weathers could
not state how fast Mr. Roberson was traveling, he stated that he “had to be coming down through
there pretty good to spin around a couple of times.” In short, the jurors heard proof through
Weathers’ testimony that they could construe to show that in the time it took Weathers to pull into
the intersection, Mr. Roberson’s vehicle traveled from beyond the railroad tracks to the intersection,
a distance of three hundred plus feet.

                As previously noted, at the close of the evidence Plaintiffs moved for a directed
verdict on the issue of comparative fault. In response, Motion Industries argued that Weathers
testified he could see to the railroad tracks from Glenview Street and there was no vehicle in either
oncoming lane other than the garbage truck. Counsel argued that “the way I think this accident
happened, the way I’m going to argue it, that plaintiff has to be in the far outside lane and has to be
going 50 to 60. That’s the only way to explain how [Weathers] doesn’t see him.” In response, the
Trial Court stated that it would “let you argue it. I don’t know that the jury will buy it.” During
closing arguments, Motion Industries presented the above argument to the jury, stating:

                       I think the only way their testimony makes sense … is if Carl
               Roberson is in that outside lane going between 50 and 60 miles an
               hour. He hasn’t stopped in 8/10 of a mile, he’s on his way home.…
               [I]f you think about the dimensions, the distances involved, look at
               the photographs of the scene, the only explanation that explains this,
               why Travis Weathers could not see him, although he stopped and
               looked, and how they got to the middle of Broad Street at the same
               time is if Carl Roberson is coming shooting down Broad Street.…

                One of Plaintiffs’ primary arguments on appeal is that, as a matter of law, Mr.
Roberson’s alleged excessive speed on the through street could not have been the proximate cause
of the accident. Plaintiffs rely on Tennessee Trailways, Inc. v. Ervin, 438 S.W.2d 733 (Tenn. 1969)
and similar cases. In Tennessee Trailways, our Supreme Court stated:

                       The record in the instant case leaves no doubt but that
               plaintiff's intestate rode his motorcycle up to the intersection, either
               hesitated or stopped, and, with the bus in unobstructed view, suddenly
               and abruptly crossed the highway into the northbound lane to the
               point of collision. It becomes too clear for argument that the asserted
               differential in the bus' speed simply could not be a realistic proximate
               cause of the accident. In the fact of uncontroverted testimony
               showing that plaintiff's intestate suddenly rode into the path of the


                                                 -5-
                oncoming bus, whether defendant's bus was traveling at 73.5 or at 63
                miles per hour becomes insignificant. It is plain that the immediate
                cause of the collision was not the speed of the bus; but apparently the
                sudden and heedless entry of plaintiff's intestate onto the north side
                of the highway.

Id. at 735. As the passengers on the bus testified, the motorcycle driver’s entry onto the highway was
“sudden” and “right in front of” the bus. Id.

                In our opinion, Tennessee Trailways would be on point in the present case if
Weathers’ vehicle had collided with the garbage truck which Weathers clearly saw, or if Roberson’s
vehicle had been visible when Weathers proceeded onto Broad Street. However, Weathers testified
that when he looked down Broad Street, the only visible vehicle was the garbage truck. If the jury
credited Weathers’ testimony, which apparently it did, then Weathers cannot be said to have pulled
out in front of a vehicle which was in his unobstructed view.

                 Other cases relied upon by Plaintiffs to support their argument that Mr. Roberson’s
claimed excessive speed could not be the proximate cause of the accident are equally as
distinguishable as Tennessee Trailways. For example, in Whaley v. Wolfenbarger, No. E1999-
02518-COA-R3-CV, 2000 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 28, 2000), the defendant did
not see a stop sign and proceeded directly into an intersection striking a vehicle being driven by the
plaintiff’s husband. We affirmed the trial court’s granting of a directed verdict to plaintiff on the
issue of comparative fault, finding there was “no evidence of any kind showing or tending to show
that the speed of the Whaley’s vehicle … contributed in any way to the accident.” Id. at ** 4-5.
Plaintiffs also cite Bobo v. Gregory, No. 03A01-9408-CV-00280, 1995 Tenn. App. LEXIS 28 (Tenn.
Ct. App. Jan. 13, 1995), but in that case the defendant, believing that the plaintiff’s vehicle was
slowing down to stop, pulled out in front of the plaintiff’s vehicle after seeing the plaintiff’s vehicle
only two or three car lengths away. Id. at *4.

                 Because there was evidence in the present case from which a jury could reasonably
conclude that Mr. Roberson’s vehicle was not yet in sight and therefore not visible when Weathers
looked for oncoming traffic and that Weathers did not simply pull out in front of an observed
vehicle, the above cases cited by Plaintiffs are in no way controlling on the comparative fault issue.
Here the jury was presented with proof showing, if the jury believed that proof which it apparently
did, that Weathers looked for oncoming traffic, that Weathers could see three hundred plus feet to
the railroad tracks, that Mr. Roberson’s vehicle simply was not yet in sight, that Weathers then began
to pull out into the intersection, and that Mr. Roberson’s vehicle covered the three hundred plus feet
in the time it took Weathers to pull into the intersection where the collision occurred.

              On appeal, we cannot re-weigh the evidence or otherwise determine where the
preponderance of the evidence lies. If there is any material evidence to support the jury’s verdict
assessing 38% comparative fault to Mr. Roberson, the verdict must be sustained. In Jones v. Bureau
of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002), we observed that:


                                                  -6-
                        The term "substantial and material evidence" has been defined
                as "'such relevant evidence as a reasonable mind might accept to
                support a rational conclusion and such as to furnish a reasonably
                sound basis for the action under consideration.'" Papachristou v.
                Univ. of Tennessee, 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)
                (quoting Clay Co. Manor, Inc. v. State, 849 S.W.2d 755, 759 (Tenn.
                1993)). This Court has also described it as requiring "'something less
                than a preponderance of the evidence ... but more than a scintilla or
                glimmer.'" Gluck v. Civil Serv. Comm'n, 15 S.W.3d 486, 490 (Tenn.
                Ct. App. 1999) (quoting Wayne Co. v. State Solid Waste Disposal
                Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)).…

Jones, 94 S.W.3d at 501.

                After reviewing, in light of the directed verdict standard of review, all of the evidence
presented at trial on this particular issue, we conclude that there was material evidence to support
the jury’s verdict that Mr. Roberson was comparatively at fault. Specifically, the jury was presented
evidence that Weathers was stopped at the intersection, that he looked toward the railroad tracks
some three hundred plus feet away, that Mr. Roberson’s vehicle was not yet in site, that Weathers
pulled into the intersection, and that Mr. Roberson’s vehicle covered three hundred plus feet in the
time it took Weathers to pull into the intersection. While the evidence of Mr. Roberson’s
comparative fault may well be less than a preponderance of the evidence on that issue, we believe
it to be “more than a scintilla or glimmer.” We note that Plaintiffs in this appeal argue only that
there is no material evidence of any comparative fault by Mr. Roberson. Apparently because
Plaintiffs do not wish a new trial, Plaintiffs do not take the position that if Mr. Roberson was
somehow at fault, then the 38% comparative fault as found by the jury is too high and should be
some amount less than 38% even if greater than zero percent. Accordingly, we affirm the judgment
of the Trial Court in all respects.

                                              Conclusion

               The Judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. Costs on appeal are assessed to the Appellants, Carl and
Vicki Roberson, and their surety.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                  -7-
