Gary/Kathryn Norman v. Vicki/Ray Prather

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________ FILED
GARY L. NORMAN and
KATHRYN NORMAN, December 23, 1997
Appellants, Cecil Crowson, Jr.
Appellate C ourt Clerk
Shelby Circuit No. 55616
Vs. C.A. No. 02A01-9706-CV-00118
VICKI LYNN PRATHER and
RAY PRATHER,
Appellees.
____________________________________________________________________________
FROM THE SHELBY COUNTY CIRCUIT COURT
THE HONORABLE ROBERT A. LANIER, JUDGE
William A. Cohn of Cordova
For Appellants
Michael L. Robb, Donna T. Snow of
Thomason, Hendrix, Harvey, Johnson &
Mitchell of Memphis, For Appellees
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
HOLLY KIRBY LILLARD, JUDGE
This case involves a vehicle/pedestrian collision. Plaintiffs, Gary L. Norman and
Kathryn Norman1, filed suit against defendants Vicki Lynn Prather and Ray Prather for personal
injuries sustained by Gary L. Norman when he was struck by a vehicle driven by Vicki Lynn
Prather and owned by Ray Prather. The complaint alleges that on June 8, 1993, plaintiff was a
pedestrian crossing Central Avenue, north bound, when he was struck by the Prather vehicle
proceeding westbound on Central Avenue. The complaint avers that plaintiff was in the turning
lane of Central Avenue when he was struck and that Vicki Lynn Prather was operating her
vehicle without proper care, failed to operate the vehicle in a reasonable and prudent manner and
was operating the vehicle with reckless disregard for the rights and safety of others. The
complaint also alleges that Vicki Prather violated the statutes of the State of Tennessee and
Ordinances of the City of Memphis, all of which directly and proximately caused a collision and
the resulting losses, injuries and damages claimed by plaintiff. Plaintiff further avers that Ray
Prather was the owner of the automobile driven by Vicki Prather and that she was driving with
his permission and in his service.
The defendants’ answer denies the material allegations of negligence and the violation
of statutes and ordinances. The defendants further aver that plaintiff was guilty of negligence
which was the direct and proximate cause of the collision and affirmatively rely upon the
doctrine of comparative fault. They aver that plaintiff was crossing at other than a cross walk
and thus violated T.C.A. § 55-8-135. Defendant, Ray Prather, filed a counter claim against
plaintiff to recover property damage to his vehicle.
At trial, plaintiff testified that he was crossing northbound on Central, that he had reached
the left turn lane and had stopped to allow westbound traffic to proceed. While standing there,
he was struck by plaintiff’s vehicle. Plaintiff, on the other hand, testified that she was
proceeding in a normal manner in the left hand lane when the plaintiff suddenly crossed in front
of her. She thereupon swerved into the left turn lane and defendant darted into her path, striking
the right front corner of her car. Witnesses testified that plaintiff stepped into the street without
looking and was walking across the street with his head down, while other pedestrians were
stopped and waiting for eastbound traffic to clear.
The jury returned its verdict assessing ninety percent proximate negligence to plaintiff,
1
Kathryn Norman’s suit is a derivative action for loss of services and consortium.
The opinion will deal with the case as though Mr. Norman was the sole plaintiff.
2
Norman, and ten percent negligence to Vicki Prather. The jury further found no damages
sustained by plaintiff and assessed damages sustained by Ray Prather at $2,000.00. They also
found that the vehicle driven by Vicki Lynn Prather was not a family purpose automobile. The
trial court entered judgment on the jury verdict for defendants as to the original complaint and
awarded cross-plaintiff, Ray Prather, property damages in the amount of $1,800.00. Plaintiffs
have appealed and present three issues for review, which, as stated in the brief, are:
1. Whether T.C.A. § 55-18-136 and T.C.A. § 55-8-135 requires
a presumption that the pedestrian is no more than 49% liable in
a vehicle pedestrian collision.
2. Whether the facts of the case support a jury verdict finding the
plaintiff/pedestrian was more negligent than the defendant/driver.
3. Whether the Court erred in failing to allow proof that a statute
exists governing speed in school zones.
We must first consider defendant’s assertion that plaintiffs have waived the presentation
of these issues for review. T.R.A.P. 3(e) provides in pertinent part:
(e) Initiation of appeal as of right. An appeal as of right to the
Supreme Court, Court of Appeals, or Court of Criminal Appeals
shall be taken by timely filing a notice of appeal with the clerk of
the trial court . . . . Provided, however, that in all cases tried by
a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence, jury instructions
granted or refused, misconduct of jurors, parties or counsel, or
other action committed or occurring during the trial of the case,
or other ground upon which a new trial is sought, unless the same
was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.
T.R.A.P. 3(e) (emphasis added).
Plaintiffs’ motion for a new trial states as follows:
NOW COMES THE PLAINTIFF, and hereby requests that a new trial be
granted. The grounds are that the jury found no negligence on the part of
Plaintiff, but the statutes clearly place the burden on the Defendant;
WHEREFORE, premises considered plaintiff prays that this Honorable
Court grant the requested relief.
Plaintiffs’ motion for a new trial is confusing at best because the jury did indeed find that
the plaintiffs were ninety percent at fault. Although the motion for a new trial is deficient, we
perceive from the argument in plaintiffs’ brief that plaintiff is complaining that the trial court
gave erroneous instructions to the jury or should have further instructed the jury concerning
plaintiffs’ interpretation of state statutes. In essence, plaintiffs assert that the applicable
3
provision of the Tennessee Code, when read together, create a presumption that anytime a
vehicle is involved in a collision with a pedestrian, that the pedestrian is no more than 49%
liable. The relevant provisions relied on provide as follows:
55-8-135. Crossing at other than crosswalks. -- (a) Every pedestrian crossing
a roadway at any point other than within a marked crosswalk or within an
unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles
upon the roadway.
* * * *
(c) Between adjacent intersections at which traffic-control signals are in
operation pedestrians shall not cross at any place except in a marked crosswalk.
T.C.A. § 55-8-135 (1993).
55-8-136. Drivers to exercise due care. -- Notwithstanding the foregoing
provisions of this chapter, every driver of a vehicle shall exercise due care to
avoid colliding with any pedestrian upon any roadway, and shall give warning
by sounding the horn when necessary, and shall exercise proper precaution upon
observing any child or any confused or incapacitated person upon a roadway.
T.C.A. § 55-8-136 (1993).
Mr. Norman, through counsel, argues that when the statutes are read together, the phrase
“Notwithstanding the foregoing provisions” amounts to a legislative declaration that anytime
there is a pedestrian/vehicle collision, the driver is presumed primarily at fault. Mr. Norman
asserts that the jury should have been instructed that if the driver is determined to be negligent
the jury cannot find that the driver is less than 51% responsible for the accident. Mr. Norman
cites no authority for this proposition, and we doubt that any can be found.
The fundamental purpose of a court in interpreting a statute is to give effect to legislative
intent. Biddle v. Town of Farragut, 646 S.W.2d 925 (Tenn. App. 1982). The meaning of a
statute is to be determined, not from special words in a single sentence or section but from the
statute taken as a whole and viewing the legislation in light of its general purposes. Tidwell v.
Servomation-Willoughby Co., 483 S.W.2d 98 (Tenn. 1972). The legislative intent or purpose
is to be ascertained primarily from the natural and ordinary meaning of the language used when
read in context of the entire statute and without any forced or subtle construction to limit import
of the language. City of Caryville v. Campbell County, 660 S.W.2d 510 (Tenn. App. 1983). We
believe the provisions of the statutes in question are clear and unambiguous in stating that
notwithstanding the various rights and duties placed upon drivers and pedestrians by the “rules
of the road,” and notwithstanding that pedestrians not in crosswalks must yield the right-of-way
to vehicles upon the roadway, drivers of vehicles on the roadway do not have a license to run
4
over pedestrians who are not following the rules.
By no liberal reading of plaintiffs’ motion for a new trial could we include Issues 2 and
3. To allow plaintiffs’ first issue to be included in the motion for a new trial is liberalism to the
extreme. But even if we construe the motion to include the first issue, plaintiffs’ appeal must
fail for two reasons. First, plaintiffs are complaining that the trial court erroneously instructed
the jury or did not give complete instructions to the jury. However, the record reflects that the
jury charge is not included in the transcript. If the original charge to the jury is not included in
the record, the presumption is that the trial court charged the jury fully and correctly. Bennett
v. Sanders, 685 S.W.2d 1 (Tenn. App. 1984); Pickard v. Ferrell, 45 Tenn. App. 460, 325
S.W.2d 288 (1959). And, second, as heretofore noted, plaintiffs’ interpretation of the statute is
erroneous.
The judgment of the trial court is affirmed. The case is remanded to the trial court for
such further proceedings as are necessary. Costs of the appeal are assessed against the appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
DAVID R. FARMER, JUDGE
____________________________________
HOLLY KIRBY LILLARD, JUDGE
5