                                                       FILED
EDWARD TRAUGHBER, a minor,            )                   July 31, 1998
individually, and by next friends and )
parents, EDWARD WEAVER and            )
                                                      Cecil W. Crowson
JUANITA TRAUGHBER, and EDWARD)
                                                     Appellate Court Clerk
WEAVER and JUANITA TRAUGHBER,)
individually,                         )
                                      )    Montgomery Circuit
       Plaintiffs/Appellants,         )    No. C-9-217
                                      )
VS.                                   )
                                      )
KELLY A. KRESS, JAMES LEON            )    Appeal No.
MILLER, SR., CLARKSVILLE              )    01A01-9709-CV-00525
MONTGOMERY COUNTY SCHOOL )
BOARD and CLARKSVILLE                 )
MONTGOMERY COUNTY SCHOOL )
SYSTEM,                               )
                                      )
       Defendants/Appellees.          )


                IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE

     APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                  AT CLARKSVILLE, TENNESSEE

              HONORABLE JAMES E. WALTON, CHANCELLOR



Roland Robert Lenard
321 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFFS/APPELLANTS


Steven C. Girsky
121 South Third Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANTS/APPELLEES


                        AFFIRMED AND REMANDED.



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE

EDWARD TRAUGHBER, a minor,            )
individually, and by next friends and )
parents, EDWARD WEAVER and            )
JUANITA TRAUGHBER, and EDWARD)
WEAVER and JUANITA TRAUGHBER,)
individually,                         )
                                      )               Montgomery Circuit
       Plaintiffs/Appellants,         )               No. C9-217
                                      )
VS.                                   )
                                      )
KELLY A. KRESS, JAMES LEON            )               Appeal No.
MILLER, SR., CLARKSVILLE              )               01A01-9709-CV-00525
MONTGOMERY COUNTY SCHOOL )
BOARD and CLARKSVILLE                 )
MONTGOMERY COUNTY SCHOOL )
SYSTEM,                               )
                                      )
       Defendants/Appellees.          )



                                     OPINION

       The plaintiff, Edward Traughber was seriously injured prior to boarding a school bus

which was stopped with red warning lights flashing and a stop sign extended from the side of

the bus.



       Some of the background of the injury is undisputed. Edward is the youngest of several

children of Mr. and Mrs. Traughber whose home is on the north side of E Street. The regular

bus driver was accustomed to proceed eastward on E Street and to stop for the Traughber

children in the street in front of the Traughber home. Mrs. Traughber was accustomed to

watching for the arrival of the bus and to notify her children that it was waiting. On the morning

of the injury, the school bus was operated by a substitute driver who had driven the route before

but was using a map showing the location of stops for children. The front of the bus moved a

short distance past the customary stop and stopped “in the middle of the street” to await the

children. Edward was the first child to leave the house. The bus driver looked out the front of

the bus and saw an automobile approaching at a rapid speed with no apparent intention of


                                               -2-
stopping as required by law when a school bus is stopped with flashing lights and stop sign

displayed. The driver attempted to induce the approaching auto to stop by waving his arm out

his window. The driver made no attempt to stop except to “take my foot off the gas.” As the

auto passed the bus, Edward was injured. After the injury of Edward, the passing car made 58

feet of skid marks before stopping.



          The precise immediate circumstances of the injury of Edward are unclear. It is

reasonably clear that the passing auto was in the street at the time of the injury. It is conceded

that the cause of Edward’s injury was contact between the right side of the passing vehicle and

Edward’s body.



          The testimony of the witnesses is conflicting as to where Edward was when he was

injured and whether he was standing still or moving toward the bus, i.e., into the street. The

evidence is also conflicting as to the precise location of the Kress vehicle when Edward was

injured. The evidence also varies as to whether the bus driver signaled the children that it was

safe to enter the street before Edward was injured. There is testimony of witnesses that they did

not see yellow or red lights flashing or an extended stop sign, but no witness testified positively

that these warnings were not displayed and some witnesses testified that they actually saw the

warnings displayed.



          The plaintiffs sued Ms. Kress, the driver of the automobile, the driver of the school bus,

and the school board and system which employed the bus driver. It was stipulated that the school

board and system were parts of a governmental entity subject to the uniform Governmental Tort

Liability Act, T.C.A. §§ 29-20-101 et seq. The bus driver was dismissed from the case because

of the immunity granted by § 29-20-310(b). A settlement of the liability of Ms. Kress was

approved by the Trial Court, and she was dismissed. The only issue left for resolution by the

Trial Court was the liability of the Board and System for negligence of their employee, the bus

driver.



                                                 -3-
       At the conclusion of the evidence, the Trial Judge delivered an oral opinion containing

the following:

                          The plaintiffs, of course, have the burden of proof to
                 establish by a preponderance of the evidence two things.
                 First, that the school board though its driver, Mr. Miller, was
                 negligent.
                                                 ----
                          First of all, there’s no dispute that the bus stopped.
                                                 ----
                          I find that Mr. Miller as he was driving up the road
                 had on the flashing yellow caution. I also find that at the time
                 he was stopped in front of this home that the red lights were
                 on flashing and also the stop sign outside of the bus had been
                 activated.
                                                 ----
                          So there’s no debate about the level of duty and
                 responsibility that Mr. Miller had. It was a very high duty.

                         Mr. Miller says that he did not at any time wave to the
                 children. He said he did wave, but it was at the driver of the
                 vehicle. But he says that he did not tell the children to come
                 across the road.
                                                ----
                         All right, the accident, itself, when Edward was
                 struck. He obviously was hit or the side of the car hit him.
                 Whether he ran into the side of the car, whether the side of the
                 car in some fashion hit him as he was standing near the edge
                 of the drive, probably no one will ever know. In the
                 deposition testimony, Edward felt that he was in the driveway
                 and not out in the street. Today his memory was, and again
                 he was being as truthful as he knew how to be, was that he
                 was near the edge of the drive as indicated in the diagram; and
                 that when he saw the driver wave, that he was going to walk
                 up the side of the street, cross in front of the bus and get on
                 the bus. He doesn’t remember the car hitting him.
                                                ----
                         Even if these children and in particular Edward
                 thought that Mr. Miller was waving them to come across the
                 road, I find that he never intended or did that. I find that his
                 effort to stop Ms. Kress was entirely responsible and
                 reasonable. I find that in no way did Mr. Miller violate a duty
                 which would constitute negligence or that would be
                 proximate cause of the injury and damage that Edward has so
                 unfortunately suffered.
                                                ----
                         The damage and injuries suffered by Edward is the
                 result of the negligence of Ms. Kress in totally failing to obey
                 the law and totally disregarding the lights and signs by the
                 school bus, which were there for her to see.
                                                ----
                         I find that the plaintiff has failed to carry its burden of
                 proof by a preponderance of the evidence and has not
                 established that the defendants through its driver, Mr. Miller,



                                                -4-
                was negligent or such negligence, if any, was the proximate
                cause of the injury and damage to Edward.


        The Trial Judge entered judgment stating:

                        THE COURT FINDS that the sole proximate cause of
                the accident is the conduct of KELLY KRESS.

                       THE COURT FURTHER FINDS that the Plaintiff has
                failed to prove that any actions or inactions of the
                CLARKSVILLE-MONTGOMERY COUNTY SCHOOL
                BOARD’s agent, JAMES LEON MILLER, SR., in any way
                caused or contributed to cause this accident.


        On appeal, the plaintiffs state the issues in the following form:

                       1.      That the Court erred by failing to find the
                appellees responsible for the personal injuries to appellant by
                a preponderance of the evidence.

                        2.      That the Court erred by failing to follow the
                law of the State of Tennessee concerning the duty of school
                bus drivers to children entrusted in their care.


        Appellants first rely upon “the plentitude of violations of the driver’s manual.” However,

appellants cite no particular part of said manual which the driver is shown to have violated.



        Appellants next complain that the Trial Court found the defendant Kress negligent

because he found that warning lights and sign were displayed by the bus driver. The Trial Judge

credited the testimony of defendant Miller and another witness as to the warning devices.

Nothing in this record justifies a revision of the finding of the Trial Judge as to credibility. Hill

v. Lawson, Tenn. 1992, 851 S.W.2d 822.



        Appellants next complain that the Trial Judge ignored certain key testimony and exhibits

reflecting upon the “wave” of the bus driver. However, no specific citation supports this

complaint. This Court agrees with the Trial Judge that the preponderance of the evidence

establishes that the negligence of the defendant Kress in disregarding the warning devices on the

bus created an emergency in which all others acted within their ability to prevent the tragic




                                                -5-
result. The circumstances support the finding that the negligence of Ms. Kress was the sole

proximate cause of the injury.



        Appellants cite Cartwright v. Graves, 182 Tenn. 114, 184 S.W.2d 373 (1944), wherein

the Supreme Court affirmed a jury verdict for the plaintiff. The injured child was on board the

bus, and the driver opened the door and permitted her to leave the bus despite the fact that a large

lumber truck was meeting the bus and about to pass it on the left side. In the present case, the

Trial Judge, sitting without a jury, found that the driver did not signal the children that they

might safely enter the street to board the bus, but was trying to stop a vehicle which had

approached and was about to pass the bus at a high speed in spite of visible warning devices on

the bus and the strict requirements of the law.



        The sum and substance of the behavior of the defendant, Miller, as found by the Trial

Judge is that Mr. Miller stopped his bus in the middle of the street, saw no vehicles approaching

and was about to signal the children to cross in front of the bus to enter the door when Ms. Kress

came speeding toward the bus, and he devoted all his efforts to getting her to stop as required by

law, but she did not do so. She admitted that her only response to signals from the bus was to

“take her foot off of the gas.” Her 58 feet of skid marks began at the point of collision

corroborating her failure to apply brakes sooner. If, as she insists, the child ran into the side of

her car, the car was at a place where it had no right to be, namely passing a stopped school bus.



        T.C.A. § 55-8-151 provides in pertinent part as follows:

                        Overtaking and passing school or church bus -
                Markings - Discharging passengers - Penalties. - (a)(1) The
                driver of a vehicle upon a highway, upon meeting or
                overtaking from either direction any school bus which has
                stopped on the highway for the purpose of receiving or
                discharging any school children, shall stop the vehicle before
                reaching such school bus, and the driver shall not proceed
                until such school bus resumes motion or is signaled by the
                school bus driver to proceed or the visual signals are no
                longer actuated.
                                           ----



                                              -6-
                     (5)    Any person failing to comply with the
              requirements of this subsection, requiring motor vehicles to
              stop upon approaching school buses, or violating any of the
              provisions of this subsection, commits a Class C
              misdemeanor.


       The evidence does not preponderate against the factual findings by the Trial Judge, and

no error of law is found in his conclusion that the sole proximate cause of the injury was the

negligence of the defendant, Ms. Kress.



       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

appellants. The cause is remanded to the Trial Court for necessary further procedure.



                             AFFIRMED AND REMANDED.



                                                    _________________________________
                                                    HENRY F. TODD
                                                    PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE




                                             -7-
